S v Mboniswa (CC 101/2002) [2003] ZAWCHC 14; [2004] 3 All SA 96 (C) (13 May 2003)

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[2003] ZAWCHC 14
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S v Mboniswa (CC 101/2002) [2003] ZAWCHC 14; [2004] 3 All SA 96 (C) (13 May 2003)

REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO CC 101/2002
In
the matter between:
THE
STATE
and
LUYANDA
MBONISWA Accused
THIS JUDGMENT DELIVERED ON THIS 13
TH
DAY
OF MAY 2003
HLOPHE,
JP:
The accused, a twenty-two year old adult male, was
charged with:
Murder;
Robbery (with aggravating circumstances as defined in
section 1
of the
Criminal Procedure Act 51 of 1977
); and
Housebreaking with intent to commit a crime unknown to
the State.
The State alleged that these crimes were committed on
or about 02 December 2001 at Dolphin Beach, Cape Town, upon the
deceased,
Mrs Marike de Klerk, the former first lady.
At the beginning of the trial, the State made an
application to add a fourth charge to the indictment, namely
rape
.
The defence counsel did not object to the application to amend the
charge sheet. However, defence requested an explanation as
to why
the charge was introduced at such a late stage. In the circumstances
the Court allowed the application to amend the charge
sheet.
The accused pleaded
“not guilty”
on all four
charges. Defence counsel confirmed that the plea was in accordance
with instructions. The accused exercised his constitutional
right to
remain silent. There was no
section 115
Plea statement handed up to
the court and no indication was given to Court as to the accused’s
defence.
Ms T
Heunis
SC, together with Ms M
Tsheole
,
appeared for the State throughout the proceedings in this case. The
accused was represented in Court by Mr P
Gamble
SC, who
appeared together with Mr S
Mohammed
and Mr H
Rossouw
.
On
the first day of the trial, immediately after the accused had
pleaded not guilty, the Court was asked to adjourn the proceedings
in order to carry out an
Inspection In Loco
at Dolphin Beach
Complex, the scene of the crimes in question. On arrival at the
scene the Court was shown the Security Guards’
Control Room, which
is at the entrance of the complex and opposite the storeroom that is
also used by the security guards. The
accused was having his meal in
the storeroom when the Police came to arrest him.
On the way to the deceased’s apartment, the Court was
shown a rover point, one of ten where the security guards had to
check in
when patrolling the complex. In the apartment the master
bedroom was pointed out to the Court. The deceased’s body was
allegedly
discovered in the master bedroom. All the other rooms of
the apartment were inspected as well. During evidence reference was
constantly
made to “Exhibits A and "B" which contained
photographs of the apartment and the complex.
The exterior of the apartment was also inspected and
measurements of the wall, which may have been used in order to gain
access
to the apartment, were taken. On part of the wall a camera
was situated which, it was alleged, was not working on the evening
of
the commission of the crimes in question. It was noted that on
the beach side of the complex, there is no security fence. The
basement
parking was also observed, and the parking bay of the
deceased where her car was found.
Thereafter, the Court proceeded to the Total Filling
Station where the accused was alleged to have been seen and to have
made telephone
calls on the night of the murder. The Court was also
shown the room in which the video camera recorders were installed
for purposes
of security. It was pointed out to the Court that one
of the cameras in question took photographs of the accused when the
latter
visited the Total Filling Station on the night of the alleged
killing of Mrs de Klerk. The
Inspection In Loco
minutes were
handed up to Court by agreement between the parties and marked as
“Exhibit R”. The document speaks for itself.
The evidence
The State called several witnesses in support of its
case. In essence the State’s case was to the following effect.
Kelvin Cornelius,
a security officer who was a section leader at the
Dolphin Beach Hotel complex, testified that at 16h00 on the 4
th
December 2001 the security guard who was patrolling the complex
(Vernon Bosch) informed him that the deceased’s beautician had
come for the second time to the security office where he was
stationed, at the front of the complex and informed him that the

deceased had missed her appointment. She then requested that
Cornelius accompany her to access apartment D102, being that of the
deceased. They were unable to gain access through the front door,
which was locked. Ntshuba, a fellow security guard at the complex
had advised him to get into the flat via rover point 9. Cornelius
attempted to climb the wall at this point but failed. Ntshuba
then
brought a ladder which Cornelius used to get to the balcony. He then
tried to access apartment D102. The third sliding door
from the left
opened and he entered what he identified was a bedroom after lifting
aside a curtain. He entered the bedroom and
saw a body lying on the
floor, which he was able to identify as that of Mrs de Klerk. He
checked but he could not find a pulse
and so he took a sheet from
the bed and covered the body. The beautician, Yolanda Wright, had
also climbed up the ladder and had
entered the apartment. Then Myra
Roux, a neighbour, heard Wright’s screams and also arrived. The
police were called. Kruger,
the Dolphin Beach Manager, unlocked the
front door that leads to the lift. Cornelius then showed him the
body. Cornelius noticed
a thin line of blood on the wall, and a
blood spot on the carpet. The police then arrived. They were two
constables from Table
View.
Cornelius also testified that the accused was supposed
to be on duty on Monday the 3
rd
December 2001, but did
not arrive. Ntshuba told him that the accused had been in the
Complex late the previous night. Cornelius
said he was upset to hear
that because the security guards had instructions that they should
not be in the Complex when they were
off duty. When the accused
telephoned Cornelius, he told him that some of his goods had been
stolen when his residence was broken
into. Cornelius advised him to
report the matter to the Police. Cornelius further testified that
when he was patrolling he found
a pocket torch, about 10 (ten)
centimetres long. He thought it belonged to the accused as he liked
gadgets, like cellular telephones.
The accused only reported for
work on Wednesday the 5
th
December 2001. Cornelius told
the accused that the Police would approach him first because he was
the last on the premises. Asked
what the accused’s response was to
that, Cornelius said the latter said “I know”. Later that
afternoon the Police came and
arrested the accused.
Cornelius told the Court further that he usually asked
the cleaners for rubber gloves for the security guards to use when
cleaning
their toilets. A pair of similar gloves was handed up to
Court and marked as “Exhibit 8”.
Yolanda Sharon Wright, the deceased’s beautician,
corroborated Cornelius’ evidence that she arrived at the Dolphin
Beach on
the 4
th
December 2001 to look for Mrs de Klerk,
as she (the deceased) had an appointment with her the previous day
at 13h00. She further
testified that, after trying several times to
get hold of Mrs de Klerk in vain, she decided to go to the Dolphin
Beach. Wright
said that she was concerned because Mrs de Klerk had
never missed an appointment, and furthermore Mrs de Klerk had not
responded
to the message that Wright had left on her landline
answering machine. The cellular telephone was off and there was no
voicemail
to allow Wright to leave a message. Wright further
corroborated Cornelius’ evidence regarding the way they gained
access to the
deceased’s flat, confirming that the third sliding
door was unlocked. She further testified that the body of the
deceased was
found lying in the positions portrayed in “Exhibit A”
Photographs 1 and 2.
Myra Dawn Roux testified that she occupied apartment
CG04 at the Dolphin Beach Complex. Roux stated that on the afternoon
of the
4
th
December 2001 she had heard screaming outside
the apartment occupied by the deceased. She exited her apartment and
found a security
guard standing outside holding a ladder against the
balcony of the deceased’s flat. She ascended the ladder and
entered the apartment.
She found a woman kneeling over a body which
had been covered by a sheet. She proceeded to lift the sheet and
confirmed that the
body was that of Mrs de Klerk. She then asked
Cornelius, a security guard who was also present, to fetch sugar
water for herself
and the distressed woman who was hysterical. She
also asked Cornelius to call the police. She went to look for a
telephone and
found a piece of paper beside the telephone which
contained some numbers, including one for the deceased’s daughter,
whom Roux
proceeded to phone. She could not recall whether she had
phoned any of the other numbers on the list. The police were then
phoned.
When the police arrived she was told to leave the apartment.
Another witness was Sipho Kem. He gave evidence to the
effect that he was working as a night auditor at the front reception
of the
Dolphin Beach Hotel, on the night of the 2
nd
December 2001. He told the Court that he received a telephone call
from the accused at 23h45 on the 2
nd
December 2001. The
accused told him that his friends had left him behind at the beach
after they had been drinking. He asked to
borrow his car in order to
use it to go home at Khayelitsha. Kem declined to lend the accused
his car. Kem phoned the security
office situated at the entrance of
the complex and informed Ntshuba, one of the security officers who
was on duty, that he had
been phoned by the accused, asking to
borrow his car. Ten minutes later the accused came into the
reception and again requested
use of Kem’s car. Kem again
declined. Kem observed that the accused appeared to be “in a great
hurry”. Kem stated that the
accused was wearing a dirty white
T-shirt, dark pants and a green cap. Kem was a credible and reliable
witness, remaining consistent
after extensive cross-examination.
Nicholas Fredsen, who was a security guard with
Securicor Gray Services, testified that he was on duty for the night
shift on the
2
nd
December 2001 at Dolphin Beach. He
arrived on duty at 17h25. He gave evidence to the effect that there
were two guards on duty
that night, himself and Mkhululi Ntshuba. He
testified that the patrol procedure was that one of the guards would
conduct a patrol
of the complex which lasted 50 minutes and involved
criss-crossing the complex and placing a key in all ten of the rover
points,
while one guard remained in the security office for access
control purposes. Fredsen gave evidence in regard to the fact that
each
fifty-minute patrol would be followed by a twenty-minute rest
period, during which time both of the security officers on duty
would
be together in the Control Room. The times and any relevant
details of these patrols would be noted in the occurrence book.
Copies
of the occurrence book for the night of the 2
nd
December 2001 were handed up to Court as “Exhibit O”. Fredsen
also gave evidence in respect of a phone call made by the accused
to
the security office. He testified that he had answered the phone and
then passed it to his colleague, Ntshuba, who had a discussion
with
the accused. Fredsen stated that the accused had then come to the
security office, and he passed and greeted the accused as
he was
leaving at 00h30 to start his patrol round the complex. Fredsen
corroborated the testimony of Kem in respect of the clothes
that the
accused was wearing. He stated that the accused was wearing a dirty
white T-shirt, blue jeans and a cap. He was a credible
witness,
remaining consistent in the face of lengthy cross-examination. He
gave evidence in a straightforward manner. I am quite
satisfied that
his evidence may be safely relied upon.
Mkhululi Ntshuba gave evidence which corroborated a
number of other witnesses’ evidence. Ntshuba was a security
officer who was
on duty on the night of the commission of the crimes
in question. He gave evidence to the effect that the accused
telephoned him
from Blouberg and told him that his friends had left
him behind at the beach after they had been partying. The accused
further
told Ntshuba that he wanted to come and borrow Kem’s car.
Later the accused phoned Ntshuba again and told him that Kem had
refused
to lend him his car. He mentioned that he would be coming to
the Dolphin Beach Complex to make further oral representations to

Kem. Ntshuba saw the accused when he came to the complex, wearing
the same clothes as described by Kem in his testimony. Ntshuba,
like
Kem, said that although he looked like someone who had been drinking
as his eyes were red, the accused was not drunk. The
white T-shirt
that he was wearing was dirty, but his speech and walk were normal.
In further corroboration with Cornelius, Ntshuba said
that on Tuesday the 4
th
December 2001 Vernon Bosch had
told him that Yolanda Wright was looking for the deceased. Ntshuba
also testified that he last saw
Mrs de Klerk on Sunday evening, the
2
nd
December 2001, alone in her car. Ntshuba also
testified that he failed to make an entry in the occurrence book
detailing the presence
of the accused at the complex after hours.
Consequently Cornelius asked him to write a report describing the
incident. Despite
lengthy cross-examination, Ntshuba emerged as an
honest witness whose evidence could be safely relied upon.
Two further witnesses, Xolile Mbeka and Denver
Collins, who worked for Securicor Gray Head Office at Woodstock
testified. Mbeka
was on night duty on the 2
nd
December
2001. He gave evidence that the accused called at 04h50 on the 3
rd
December 2001 to say that he was not coming to work as he was not
feeling well and was going to consult a doctor. Collins, who
was
working the following shift, said that the accused called at 07h30
on the same day to say he would not be reporting for duty
as he was
going to consult a doctor. Both these calls were recorded in the
Occurrence Book. (“Exhibits P and Q” respectively).
An expert witness from MTN (Mobile Telephone Network),
Hilda Hester du Plessis, gave evidence as to how to gain
information on
the use of a cellular telephone. She had worked for
MTN in the Forensic Data Department for six years. She was
authorised to release
information from the computer to the Police if
they needed it for investigating purposes. She gave evidence that
the information
regarding MTN cellular telephones is not created or
punched by a human being into the computer, but it is done
electronically.
Du Plessis also testified that during the period of
November to December 2001, the system was not faulty at all. She
explained
to the Court that everything done with the cellular
telephone, for example making calls, sending messages etc. is stored
in the
computer. Even if a call has been forwarded to a voicemail,
the computer would capture that. All the data in the computer cannot
be altered by anyone.
Du Plessis said that they received a request by the
Cape Town Police for detailed records of a cellular telephone with
the number
083 683 7505. She retrieved the information and it showed
that several calls were made from that phone between the 3
rd
and the 5
th
December 2001, using different SIM
(Subscriber Identification Module) cards, including the deceased’s.
Evidence showed that the
number “083 683 7505” belonged to the
accused. This was not disputed by the accused.
The State also led evidence from witnesses who
testified that the accused had certain items in his possession,
which were later
identified as belonging to the deceased. His
girlfriend, Nokuzola Victoria Dyasi, said that on the evening of the
2
nd
December 2001 the accused had gone to Table View with
her brother. When she spoke to the accused in person in the early
hours of
the 3
rd
December 2001 he informed her that he
had gone to his place of work in order to borrow Sipho Kem’s car.
She testified that when
they went to the accused’s room to sleep
he counted out approximately R300 in fifty and twenty rand notes.
That night the accused
slept badly. He was restless and at times
gasping for breath. Her evidence was that this was unusual as she
had known the accused,
with whom she had been in love for about ten
months, to be a relatively quiet sleeper who did not even snore.
She testified that the next morning she observed that
the accused had in his possession a black Nokia 5110 cellular
telephone, which
she identified as “Exhibit 5”, and a gold
ladies wrist watch which she identified as “Exhibit 1”. She also
gave evidence
in respect of a phone call made by the accused to his
employers informing them that he was sick that morning and would be
unable
to report for duty. She corroborated Ntshuba’s evidence
regarding a call that the accused had received from Ntshuba asking
the
accused where he was because he was supposed to be starting his
shift. She also gave evidence in respect of a request by the accused
that afternoon to wash his clothes. On Wednesday the 5
th
December 2001 she received an SMS (
Short Message System
that
is written on the screen of the cellphone) from the accused in
Xhosa, instructing her to take his blue jeans, the black Nokia
5110
cellphone, the watch and the cap and to hide them. She informed the
Court that she threw the cap in the rubbish bin and took
the rest of
the possessions to her home, including two silver watches because
she was unsure which watch the accused was referring
to. She then
wrapped the cellphone and three watches in a T-shirt, placed them in
a bag, and hid them under her brother’s bed.
In her testimony Victoria stated that the police
arrived at her home on Thursday the 6
th
December 2001 and
informed her that the accused had been arrested. She gave the police
the jeans that she had washed and a pair
of Nike tackies with white
heels. She testified that these were the ones the accused had been
wearing on the night the crimes were
committed. However, the accused
insisted that she bring another pair which he said he had been
wearing. She testified that she
handed the bag containing the
cellphone and watches to her friend Samuel Mehlwana and asked him to
keep them for her. When the
police returned to question her she
denied knowledge of these goods. However, the accused later told her
to hand them over to the
police. She then asked Samuel Mehlwana to
return them and the latter gave the cellphone and the watches to the
police.
When Victoria was asked how the accused appeared to be
emotionally, she testified that he appeared to be “in grief”.
Samuel Mehlwana gave evidence that Victoria gave him a
plastic bag with three watches and a cellular telephone inside, and
asked
him to hide it. He said that she told him what was in the bag,
and he hid it at his residence. Later the police came to collect
the items. This witness identified the gold watch and the cellphone,
and said that he recognised them as the items which Victoria
had
asked him to hide.
Mzwabantu Dyasi (also known as “Botyo”), the
sixteen-year old brother of Victoria, was also called. He gave
evidence that on
Sunday the 2
nd
December 2001, at about
21h00, the accused arrived at his home with another man in a white
VW Jetta. The three of them then proceeded
to Blouberg. The driver
was given directions by the accused, and he dropped them off at the
Total Service Station, Blouberg, at
about 22h00. The accused paid
the driver R150. The accused left Botyo at the garage and said that
he was going to his workplace
borrow a vehicle. Botyo waited for him
for about three hours, and the accused only returned between 01h00
and 02h00. While Botyo
was waiting there, one man who worked at the
garage phoned his sister to tell her that he would keep him there
until morning and
give him money to go home, as Botyo was cold and
stranded.
When the accused eventually returned, they took a
metred taxi to Khayelitsha. Botyo testified that on the night in
question, the
accused was wearing blue jeans, a black lumber jacket
and a green cap. He was referred to “Exhibit V”, and confirmed
that it
was himself and the accused at the Blouberg Total Garage.
“Exhibit V” was a printout from a video-tape made by a hidden
camera
at the garage. Botyo’s evidence corroborated that of his
sister in material respects, particularly with regard to what the
accused
was wearing on the night in question.
Petrus Wynand Louw from the Fire Department, Table
View, gave evidence that on the 4
th
December 2001 he was
called to the Dolphin Beach Complex. On arrival he found two
policemen, and saw a body lying on the floor
in the master bedroom.
The body was covered with a sheet. The two policemen asked him to
establish if the person lying on the floor
was still alive or dead.
Louw removed the sheet and saw a white lady. He used a stethoscope
and a machine to establish whether
there was life. The machine
showed that the deceased was no longer breathing. Louw also told the
Court that he noticed that the
pyjama pants that the deceased was
wearing were pulled down slightly. He then pulled them up, but did
not move the body at all.
Lansley Freddie Joumar, an employee of Unicab, a taxi
company, told the Court that he was alone on duty in the Control
Room on the
night of the 2
nd
until the morning of the 3
rd
December 2001. After 01h00 he received a telephone call from someone
who needed a taxi from Blouberg to Khayelitsha. Joumar contacted
a
driver by the name of Lucky and told him that a customer needed to
be transported from Blouberg to Khayelitsha. Lucky quoted
R300 for
the trip. Joumar informed the caller, who was still on the line what
the fare would be, and the latter agreed. The caller
said he was
with a friend at the Total Garage next to the Tempest Car Hire. The
caller identified himself as Mboniswa, and gave
his telephone number
as 083 683 7507. Joumar recorded the information in his occurrence
book. The entry page of Unicab occurrence
book was handed up to
Court as “Exhibit EE”.
Joumar said that about thirty minutes later Mboniswa
called to enquire how long the taxi would take to arrive at the
garage. Joumar
called Lucky, who said that he was already at
Blouberg and was trying to locate the Total Garage. Joumar conveyed
that to the caller,
one Mboniswa.
Vuyani Lucky Masoka, who was a driver at Unicab,
corroborated Joumar’s evidence that he was called on the two-way
radio and asked
to transport two gentlemen from Blouberg Total
Garage to Khayelitsha. The fare of R300 was paid up front by the
older of the two,
who looked sober and calm.
Inspector Andries Gous Visser Delport from the South
African Police Services in Table View gave evidence that on the 4
th
December 2001 at about 16h00, he was called to Apartment D102 at the
Dolphin Beach Complex. On arrival at the scene he found Cornelius
and two white ladies in the flat. He saw a body lying on the floor.
It was a white lady wearing pink clothes. The body lay on its
back,
the arms widespread, the head leaning to the left shoulder, and the
legs crossed beneath the body. Delport testified that
the position
in which he found the body was not the same as that in the
photographs in “Exhibit A”. Delport further told the
Court that
he was surprised, after seeing the condition of the body, that there
was no blood on the carpet where the body lay.
At this stage the
prosecution sought to lead evidence of statements made by the
accused to the investigating officer and the magistrate.
Both these
statements were ruled admissible. I shall deal with this later.
34. Subsequent to the rulings referred
to above, the State called Magistrate Hendrik Johannes Le Roux who
gave evidence relating to
the contents of the statement made by the
accused before him. He confirmed that the contents were recorded
verbatim. Le Roux was
adamant that he had recorded the statement
correctly. He told the Court that he understands Xhosa, and if the
interpreter had not
properly interpreted he would have picked that
up. He testified further that the statement was read back to the
accused who was satisfied
with it.
35. Mxolisi Edman Maboyana, who
interpreted when the statement was made, was also called to testify.
He was also of the opinion that
the accused understood English well
because he (the accused) would respond to questions before he could
interpret. He explained to
Court that he interpreted Le Roux’s
questions from English to Xhosa and accused’s answers from Xhosa to
English.
36. Inspector Marius Malan from Table
View gave evidence that he was called to the Dolphin Beach complex on
the 10
th
December 2001. Upon his arrival Barkhuizen asked
him to search for plastic gloves. He testified that Barkhuizen did
not state the
colour of the gloves. He told the Court that he found a
yellow glove and called Barkhuizen who came to the scene immediately.
The
glove was then put in an exhibit bag which was properly sealed.
He identified the spot where he found the glove as marked by the
letter “K” on “Exhibit B”. Malan testified that Inspector
Arries found the other glove.
37. Inspector Arries corroborated
Malan’s evidence that Barkhuizen had asked them to look for gloves.
He was also not told the colour
of the gloves. He confirmed that he
found a yellow glove. He identified the spot where he found the glove
as marked by the letter
“L” on “Exhibit B”.
38.
John Richard Thebus, who had been implicated by the accused in the
statement, told the Court that he knew Mrs de Klerk and that
he had
met her in September 2000 at a mutual friend’s wedding. Thebus said
that his relationship with Mrs de Klerk concerned dancing
lessons,
although at times they dined together at her apartment. He gave her
dancing lessons on Monday evenings, and the deceased
would pay him
R80, 00 per lesson. Occasionally he would take her to dancing lessons
by another instructor in Bellville. He told the
Court that he had
last seen Mrs de Klerk alive on Saturday the 1
st
December
2001, when they had gone dancing. He was supposed to meet her on
Monday the 3
rd
December 2001 for a dancing lesson at her
flat. When he arrived at the Dolphin Beach complex on that Monday to
see Mrs de Klerk she
did not reply on the security intercom. He
thereafter went to check if her car was in the basement parking area,
and he did not see
it. He returned home and telephoned her from his
landline. There was no reply.
39.
Thebus testified further that on Sunday the 2
nd
December
2001 while at his home he received a telephone call at about 23h30
from a friend, Doris Ricketts which lasted for about
forty minutes.
He telephoned Doris later before he went to sleep. The Telkom Record
of both telephone calls was handed in and marked
as “Exhibit HH”
and “Exhibit JJ” respectively.
40.
Thebus gave evidence that on Friday the 7
th
December 2001
he was detained by the police. He told the Court that when the police
arrived at his house they said he had been implicated
in the murder
of Mrs de Klerk. He was questioned by the police and later taken to a
District Surgeon who took some blood samples
from him. He also agreed
to be subjected to a lie-detector test. On Saturday the 8
th
December 2001 he was released. When the police came to search his
house on Tuesday the 11
th
December 2001, they asked for a
pair of black shoes and said that the accused had told them that on
the night of the commission of
the crimes he had been wearing it.
Thebus testified that on the night in question he had been wearing
tan, and not black shoes. However
he gave the police black shoes
because they had asked for them. The police also took a pair of
trousers and a waistcoat. When he
was asked whether he told the
police that he was wearing tan and not black shoes on the night in
question, Thebus answered in the
negative. On the 11
th
December 2001 Thebus then made a statement to Sergeant van der Merwe
at the Bishop Lavis Police Station.
41. Thebus adamantly denied all
allegations made by the accused against him. He told the Court that
the conversations between himself
and the accused only went as far as
greeting him and thanking him at the gate. He told the Court that he
knew nothing about the killing
of Mrs de Klerk and that he was not at
all involved in planning to rob or steal the deceased’s valuables
and that he was at home
on the night of the alleged crimes.
42. Inspector Craig Shane Hale
testified that on the 4
th
December 2001 between 14h00 and
15h00, he was called to the crime scene to take photographs of
certain exhibits. He confirmed having
taken photographs of the gloves
shown in “Exhibit GG”. After he had done so, Captain Bartholomew
put the gloves in separate exhibit
bags and sealed them in his
presence. Hale told the Court that he took the photographs of two red
Mercedes Benz’s. One car belonged
to the deceased and the other
belonged to one Vos who also resided at the Dolphin Beach complex.
43. Detective Constable Speed testified
that on the 12
th
December 2001 he had been instructed by
Barkhuizen to take the accused to Karl Bremer Hospital for medical
examination. Speed told
the Court that he and Barnard took the
accused to hospital, where the latter was examined by Dr Jentel.
Speed testified that Dr Jentel
drew blood and hair samples from the
accused and placed them in a crime kit.
44. Speed gave evidence of the
integrity of crime kits. He told the Court that a crime kit was
handed to the doctor who broke the
seal in his and accused’s
presence. In the crime kit were two glass containers for samples and
two small envelopes for hair samples.
Once these samples had been
taken they were returned to the crime kit sealed properly.
45. Speed told the Court that this seal
was stamped with a number and the usual procedure would be for the
Doctor to note the seal
number, in a place provided on the J88 form
(“Exhibit DD”) but in this instance Dr Jentel had not done that.
46. Speed testified that he had noted
the number down in his pocketbook, along with other notes relating to
the examination. This
particular page of the pocketbook was handed up
to Court as “Exhibit KK”. Speed testified that he had then been
handed the sealed
crime kit by Dr Jentel. He told the Court that he
had returned to Bishop Lavis and the crime kit, along with the J88
(Dr Jentel’s
report) and the SAP 308 (giving the doctor permission
to examine the accused), were secured in his office. Speed testified
that the
kit and the forms were placed in a padlocked cupboard, for
which there were only two keys, both of which were kept by him. The
kit
was retrieved later that day and handed to Barkhuizen.
47.
Speed testified further that he had been instructed to return to
Dolphin Beach on the 11
th
December 2001, in order to
assist Superintendent Dreyer and members of Technical Support as
record keeper during the search of the
deceased’s apartment. He had
accompanied Barkhuizen to the main bedroom of the apartment. They
opened an ottoman inside which was
a blue blanket. Underneath the
blanket they found a black plastic knife handle that was handed in as
“Exhibit 7”. They had also
removed samples of the blue blanket,
which was marked by visible stains that required analysis. They had
also removed a note made
on a memo pad beside the deceased’s bed,
as well as her computer hard-drive and an MTN SIM card from the
deceased’s study. They
entered the spare bedroom and removed a
letter addressed to the Dolphin Beach Complex, a purchase certificate
for a ladies watch,
as well as an item from the fax machine which
indicated that a fax had been sent late on the evening of the 2
nd
December 2001. A copy of the fax was handed in as “Exhibit NN”.
48.
Speed also testified that on the 11
th
December 2001 he had
gone to the home of Thebus to assist Van der Merwe to collect
clothing allegedly worn by Thebus on the 2
nd
December
2001. He told the Court that Thebus brought out certain items, namely
a cream pair of trousers, a blue jacket and a pair
of black shoes. He
informed Thebus that he also wanted a blue jacket with a zip. Thebus
gave him permission to search in his room
but the only blue jacket he
could find was without a zip. He took same, along with the other
items of clothing given to him by Thebus.
49. Captain Bruce Stuart Bartholomew
from the Criminal Record Centre in Cape Town told the Court that on
the 5
th
December 2001 he was called to Dolphin Beach. On
arrival he saw two yellow gloves that had been found near the spots
marked “K”
and “L” on “Exhibit B”. One of the gloves was
damp and had red spots which looked like blood. He put the gloves in
separate
exhibit bags and sealed them. When he was in his specially
equiped vehicle, he carefully opened the exhibit bag with the damp
glove
slightly. The reason was to let air in so that the damp glove
could be dry, in order to avoid contamination before tests were
conducted.
50. Captain Sietze Sibo Albertse, who
worked at the Criminal Records Centre in Pretoria, gave evidence that
Bartholomew brought exhibits
to the Pretoria centre on the 11
th
December 2001. The exhibits were two gloves which had to be tested
for finger prints. However, the finger prints taken could not
be
positively matched to anyone.
51. Senior Superintendent Helena
Johanna Ras from the Forensic Science Laboratory in Pretoria told the
Court that she received two
gloves from Captain Albertse. She said
the gloves were in separate sealed bags, which were in a bigger bag
that was sealed as well.
In one of the gloves a hair was found, and
it matched Mrs de Klerk after being tested. Ras then sent the
exhibits to the administration
department in the Biology Unit so that
they would be returned to Cape Town.
52. Senior Superintendent Petra Johanna
Hennop from the Forensic Science Laboratory in Kuilsriver, Cape Town,
told the Court that
on the 24
th
December 2001 she handed
over an envelope to Captain Salie, who works in the same laboratory.
She had no idea what was in the envelope.
She testified further that
when she visited the scene of the crime she saw stains on the
bathroom mat, which she thought were semen
stains. Tests were
conducted and there were no positive results to show that it was
semen.
53. Professor Gideon Jacobus Knobel is a well-known
Registered Specialist Pathologist employed by the Western Cape
Department of Health
as a Chief Specialist. He is also employed by
the University of Cape Town as Head of the Department of Forensic
Medicine and Toxicology.
Furthermore he is a Consultant at Groote
Schuur Hospital.
54. Professor Knobel gave evidence that on the 4th
December 2001, he was called to the Dolphin Beach, the apartment of
the deceased.
From his first impression, it was clear that the
deceased was assaulted and had possibly been strangled as she had
bruises all over
her face and arm. On examination of the genitals, he
was of the opinion that the deceased had possibly also been sexually
assaulted.
He testified that he had mentioned this at the scene. He
then took an extensive range of specimens using swabs, which were
handed
to the police. He also took some rough notes which he later
transcribed into a report.
55. The following morning, at 08h30, he commenced with
the post-mortem examination of the body. He concluded in his chief
findings
in his report that the deceased had died of manual
strangulation and the consequences thereof. This conclusion was a
result of the
following observations:
The body had a number of contusions and scratches
The fractures of both horns of the hyoid bone
The fractures of both upper horns of the thyroid
cartilage
Haemorrages and contusions in the deep muscles of the
neck on the right, in the right submandibular gland, and in the
posterior
wall of the hypopharynx
A subconjunctival haemorrage in the right eye, with
petechial haemorrages in the inner aspect of the lower lid of the
right eye
Other findings included a stab wound below the left
shoulder
Early changes of decomposition and autolysis of
internal organs
Both lungs were heavy and congested
56. Professor Knobel maintained that, when he examined
the body in the flat he observed a slimy mucus-like substance in the
genitals.
Later, after conducting some tests on that mucus, he found
"phosphotate acid". This, Prof. Knobel testified, may be
secreted
either by the testes or the vagina. For this reason, he
could neither include nor exclude the possibility that the deceased
had been
sexually assaulted/abused. He testified further that he was
still of the opinion that the deceased may have been sexually
assaulted,
and that he could still neither confirm nor exclude that
possibility.
57. Doctor Lorna Jean Martin, a
pathologist at the University of Cape Town, was also called as a
witness. She gave evidence that on
the 1
st
August 2002 she
was asked by Professor Knobel for an opinion on the report that he
had compiled after conducting an
in loco
examination as well
as the autopsy of Mrs de Klerk. She had not been involved in the
autopsy as she had been on leave between the
1
st
and the
10
th
December 2001. Her examination was therefore based on
the photographs in “Exhibit G”. She told the Court that in her
career she
had conducted ninety-five (95) autopsies on sexually
assaulted females, ranging from eight month to eighty-eight year
olds. She gave
evidence that she noticed erythema (redness) on the
genitals of the deceased, which highly suggested that she had had
non-consensual
sexual intercourse. She testified further that signs
showed that there had been penetration of a blunt object, such as a
male penis.
Dr Martin said the reason why she came to that conclusion
was because the injuries were at the entrance and went about ten (10)
centimetres
deep into the deceased’s genitals, as it could be seen
on the photographs in “Exhibit G”.
58. Dr Martin testified that when Prof
Knobel asked her to have a look at his report she had no idea that
the deceased might have
been raped. She concurred with Prof Knobel
with regard to the fact that the possibility that the deceased had
been sexually abused
could not be excluded. Dr Martin’s further
evidence was that the deceased might probably have been sexually
abused about an hour
to two hours before her death. However, she
conceded in re-examination that it could have been longer than two
hours, but not longer
than four hours. She also told the Court that
the State had provided her with Prof Knobel’s report and that she
had perused it
out of interest and also in preparation for her
testimony.
59. Dr Martin testified that she had
never discussed the merits of the case with Prof Knobel. She conceded
in cross-examination that
her report was based purely on the
photographs and Prof Knobel’s report that she had read. She said
that she had not physically
examined the deceased at the scene as
Prof Knobel had done.
60. Prof Knobel was recalled to the
witness stand for purposes of further cross-examination. In
cross-examination he stuck to his
previous evidence that when he
performed an autopsy on the deceased, he did not immediately conclude
that she had been raped. However,
he could not exclude the
possibility of sexual assault. When asked why he had sought Dr
Martin’s opinion as late as around August
2002, when he was already
preparing for the trial, Prof Knobel answered that there was a rumour
that he had changed his report, and
therefore he wanted her opinion
for transparency.
61. Superintendent Sharlene Otto, a DNA
expert from the Forensic Unit in Cape Town, told the Court that she
has seventeen (17) years’
experience as a DNA expert. She explained
to the Court the procedure of DNA testing in detail.
62. She said that the DNA found on the
sweat specimen which was found in the yellow gloves matched the
accused. However, she conceded
that the DNA did not match the accused
only, but also traces of other DNA. The DNA from inside the glove was
of poor quality and
insufficient to give to the defence for testing.
Accordingly there is no definite reliance that can be placed on DNA
evidence
in casu
.
63. Mr Hermanus Jacobus Visagie, an
operational specialist at Telkom, testified in respect of the calls
that were made between the
2
nd
and the 3
rd
December 2001. He corroborated Du Plessis’s evidence in material
respects. He confirmed telephone calls that were made at the Total
Garage in Blouberg. He further assured the Court that the details of
all calls were recorded electronically by the computer, no human
being can tamper therewith. Visagie also testified that the telephone
systems at Telkom were in order during the period when those
calls
were made.
64. Mr Grant Devenish Carnell, who was
Head of Radio Network at MTN, explained to the Court how data is
recorded at MTN. He said that
various stringent tests are done, for
example parity checks, which are designed to eliminate/minimise any
possibility of errors in
the data records. Carnell stressed that a
call is recorded once it is answered and sent electronically to what
is called “Input-Output
Group” (IOG), and therefore if a call did
not take place it can never be recorded. He further explained that
the records can even
show how a call has been terminated, for
instance, whether the signal went dead or it was terminated manually
by the caller or the
receiver of the call.
65. Mr John Richard Collier worked for
ISIS Wholesale Billing, which is a sub-contractor to MTN. He was a
computer expert and had
worked as a computer software developer from
1974, i.e. he has more that twenty (20) years’ experience with the
computers. He joined
MTN in 1995. Collier corroborated the other
experts’ evidence that there can be no human interference with the
processing of telephone
call data. He explained to the Court that a
record of a call cannot be fabricated, and all information is stored
electronically by
the computer. He also stated that about twenty (20)
million calls are made a day, and the system is always accurate.
66. The last witness called by the
State was Detective Superintendent Michael Anthony Barkhuizen.
Barkhuizen who has twenty-nine (29)
years’ experience as a
policeman. He told the Court that on the 4
th
December 2001
at about 17h20, he received an instruction from Director Booysen, who
was the Provincial Director of the Serious and
Violent Crimes Unit,
to go to Apartment No D102 Dolphin Beach Complex in Blouberg, the
flat being that of the former first lady Mrs
Marike de Klerk. He was
informed that there had been a sudden death and he had to investigate
the matter. When he arrived at the
scene he found Detective
Superintendent Tobias Johaan Roelofse who was based at the Table View
Police Station at the time. Inspector
Leggett, who was on stand-by at
the Table View Police Station, as well as Captain Basson were also
present.
67. Upon arrival at the scene
Barkhuizen enquired about the circumstances of death. He told the
Court that at the time it had not
been established whether the
deceased had died naturally or unnaturally. However, he immediately
formed the impression that the
deceased had been murdered as she had
bruises on her face and under her jaw, and there was blood oozing
from the mouth down her left
cheek. Captain Carstens also arrived, as
well as Superintendent Hennop who was from the Forensic Unit. A
doctor was then called to
come and certify the deceased dead.
Barkhuizen then instructed Carstens to take photographs at the
sccene. At this stage of his testimony,
Barkhuizen was shown “Exhibit
A”, which contained the photographs of the body of the deceased. He
confirmed that its position
was as he found it when he arrived at the
scene. Prof. Knobel was called to examine the body, and
Superintendent Hennop assisted
him. When Prof. Knobel arrived he
enquired if the deceased’s body was as it had been found, and it
transpired that one of the paramedics
had pulled up the pyjama pants
that the deceased was wearing, since they had been pulled down. Prof.
Knobel then summoned the gentleman
to the scene in order to explain
how they had found the deceased’s clothing, which he did. Prof.
Knobel then told the gentleman
that he should never disturb the
position of anything at a crime scene.
68. Prof. Knobel shared Barkhuizen’s
view that the deceased had not died naturally. Prof. Knobel suggested
that the deceased had
possibly been sodomised. Prof. Knobel and
Superintendent Hennop turned the body over and a broken knife blade
was found protruding
from the left shoulder blade. One other thing
that Barkhuizen also noticed when he was at the scene was that the
sliding door leading
to the balcony was closed but not locked.
However, it appeared that there had been no forced entry into the
apartment. In the handbag
that was found in the main bedroom there
was a cheque-book, but there was no cash. There was no cash found
elsewhere in the apartment.
The deceased’s business card was found
in the handbag as well, which indicated that she had a cellular
telephone; but no cellular
telephone was found in the apartment. For
that reason, Barkhuizen believed that the cellular telephone had
possibly been stolen and
requested his informant in the cellular
telephone industry to investigate if the deceased phone had been used
at anytime from the
2
nd
December 2001 and afterwards.
Among some documents found in the apartment on the day the body was
found, there was a facsimile that
had apparently been sent around
22h00 on the 2
nd
December 2001 by the deceased to a lady
in Holland (“Exhibit MM”).
69. The following morning around 08h00,
Barkhuizen went to the offices of Securicor Gray in Woodstock (the
accused’s employer) and
discovered that an entry had been made in
the occurrence book that the accused had reported off-sick.
Barkhuizen was accompanied
by Detective Constable Speed. They then
asked for the personal file of the accused and made copies thereof,
as well as copies of
the occurrence book (“Exhibits P and Q”).
When he returned to the apartment later that morning, he found that
it had been locked
and cordoned. He also found out that it had been
handed over to the Forensic Unit whose services had been requested
from Pretoria.
70. On that same day Barkhuizen
received information from his informant, which information led to the
decision to arrest the accused.
Barkhuizen then went to Dolphin
Beach. At the gate he found Cornelius who was the Security Guards’
Supervisor. He then asked Cornelius
to call the accused. Barkhuizen
was with Speed at that time, and he informed the accused that he was
arresting him, informed him
why he was arresting him and also
informed him about his constitutional rights. Thereafter they both
left with the accused to Bishop
Lavis Police Station. On the way the
accused indicated that his cellular telephone had been left where he
was eating when Cornelius
called him. Barkhuizen then called
Cornelius and Ontong, who had been left at Dolphin Beach, to look for
the phone and keep it safely.
Upon arrival at Bishop Lavis, the
accused was shown the SAP14A form, which contains constitutional
rights of an accused person. The
accused, although he was speaking
English, was asked to read the Xhosa version of the form and sign it.
71. The accused was interviewed,
and during the interview handcuffs were removed and leg irons
were put on. When the accused
was interviewed he made reports which
prompted Barkhuizen to follow them up. The accused was then taken to
Speed’s office, and
Barkhuizen arranged for the tracing of two
witnesses. The two witnesses were found and statements were duly
taken from them. The
accused was informed that his statement would be
recorded on audio/video, which was done on the seventh floor in the
presence of
Barkhuizen, Chauke and Speed.
72. After taking the statement
Barkhuizen asked the accused for his consent to search his residence
in Khayelitsha. The accused agreed
and they proceeded thereto. During
the search they found a black jacket hanging behind the door. In the
inner pocket of the jacket
a small torch with an LTA logo was found.
The accused claimed that the torch was his and he was using it at
work. They then proceeded
to the accused’s girlfriend’s (Victoria
Dyasi) residence, where her younger brother “Botyo” was arrested.
Botyo’s mother
was asked to come to the Bellville Police Station
the following day so that she would be present when a statement was
taken from
her son as he was a juvenile. The accused was detained at
the Parow Police Station. It was in the early hours of the 6
th
December 2001.
73. Later that day, at about 17h00,
Barkhuizen received a call from Parow Police Station and was informed
that the accused wanted
to see him. He went there, had a discussion
with the accused after which he decided to make arrangements that the
accused be taken
to a magistrate. As Barkhuizen was leaving the
cells, he met an attorney by the name of Gordon and had a discussion
with him. Gordon
also had a discussion with the accused and later
told Barkhuizen that he could continue with the arrangements for the
accused to
see a magistrate. Arrangements were then made for Sergeant
Barnard from Wynberg to accompany the accused to a magistrate in Cape
Town. Later that evening Barnard gave Barkhuizen a confession that
had been made by the accused before magistrate Le Roux. The accused
was thereafter taken to a district surgeon to be examined for
injuries and for DNA purposes. After the examination by the district
surgeon, the samples together with the examination form were kept in
a safe in Barkhuizen’s office, until he personally took them
to the
Forensic Laboratory on the 10
th
December 2001. Samples had
also been taken from Botyo and Thebus (the deceased’s dance
instructor whom the accused had implicated
in his confession).
Barkhuizen explained to Court how the samples are safely kept in a
crime kit and how the kit is sealed before
the doctor who performs
the test(s) breaks the seal.
74. On the 7
th
December 2001
Barkhuizen questioned Dyasi (accused’s girlfriend). There was a
discrepancy between what she told him and what the
accused had
actually told him. Dyasi was then taken to meet with the accused at
Parow Police Station. Dyasi thereafter volunteered
to accompany
Barkhuizen to Khayelitsha. Upon arrival at Khayelitsha Dyasi showed
him Mehlwana’s residence. Mehlwana was one of
the witnesses who had
been previously called by the State. After being asked for the items
he had received from Dyasi, Mehlwana brought
a plastic bag which
contained two watches, one of which was a ladies’ gold wristwatch,
and a Nokia 5110 cellular telephone. Barkhuizen
identified the gold
watch as “Exhibit 1”.
75. On the 9
th
December
2001, Barkhuizen asked Inspector Hendricks to trace Thebus. Thebus
was found the following day and was questioned. He volunteered
to
undergo a lie detector test. Two further witnesses were traced and
affidavits were obtained from them confirming Thebus’ alibi
on the
2
nd
December 2001. Records of telephone calls made to and
from Thebus’ landline at his residence were also obtained. Thebus
also volunteered
to supply the investigating team with his DNA
samples as well as fingerprints. After extensive investigation,
Thebus was released.
76. The following morning members of
the Public Protection Unit were deployed to Dolphin Beach to look for
yellow rubber gardening
gloves. Inspector Malan found the first
glove, and within a distance of approximately eight (8) metres a
second glove was found by
Inspector Arries. Both gloves were
photographed by Inspector Bartholomew and put in exhibit bags, and
sealed. Barkhuizen told the
Court that he never touched the gloves.
The two sealed bags were then taken to the Forensic Laboratory. After
the Forensic Team had
concluded the investigation, the deceased’s
apartment was handed back to Barkhuizen.
77. On the 11
th
December
2001 Barkhuizen returned to the apartment for further investigation
and possible clues. During the search he saw a blue
ottoman next to
where the body had been lying. When he shifted it he heard something
falling inside. When he checked what it was
he found a black knife
handle. He went to the kitchen to try and establish if it belonged to
some set of knives that might have belonged
to the deceased. He did
not find any similar knife. He identified the handle as “Exhibit
7”. In one of the bedrooms he found
an invoice of the purchase of a
ladies’ wristwatch which had been bought in Zurich. This invoice
had earlier been in as “Exhibit
C”, and Barkhuizen identified it.
78. Barkhuizen was shown the torch
which had been handed in as “Exhibit 2”. Cornelius had testified
that he had found the torch
next to the deceased’s apartment.
Barkhuizen identified the torch as that which had been shown to him
on the day of the accused’s
arrest. On the 7
th
January
2002 Barkhuizen met the former State President, Mr FW de Klerk, at
the deceased’s apartment. He asked Mr de Klerk to view
some of the
items that had been found during the investigation. Mr de Klerk
identified the gold wristwatch as one he had bought for
the deceased
in Zurich in 1990. Mr de Klerk also identified the two torches which
he said the deceased had used when they were still
married. In his
testimony, Barkhuizen told the Court that he had measured the
distance between the Dolphin Beach Complex and the
Total Garage in
Table View using a car’s speedometre, and he found that it was 1,2
kilometres. When he investigated the route allegedly
used by the
accused on the night of the murder, he said that it took him about
twenty-two (22) minutes to cover the distance between
the Total
Garage and the deceased’s flat.
79. Barkhuizen also identified the
notice of rights in terms of the Constitution dated the 5
th
December 2001, which had been handed up to Court as “Exhibit X”,
and testified that it had been signed by the accused and himself.
80. Under
cross-examination the witness did make a few minor concessions. He
conceded that the sliding door leading out on to the
balcony from the
main bedroom, as well as the sliding door in the dining room were
closed but not locked and that this was unusual,
given that the
deceased had appeared to be very meticulous and security conscious.
81.
Additionally, he conceded that the accused had not been advised that
he was entitled to have a lawyer present during the search
of his
residence nor was he advised that he did not have to consent to the
search. He maintained, however, that the accused had been
advised of
such rights earlier when he had signed the warning statement at
Bishop Lavis Police Station. He also told the Court in
cross-examination that he had read the accused’s confession with
circumspection because within twenty-four (24) hours the accused
had
given him two contradictory versions.
82.
Barkhuizen admitted that his failure to ensure that a fingerprint
report regarding the accused included in the docket before it
was
submitted to the prosecuting authorities was an oversight on his
part. Furthermore, he acknowledged that the fact that he updated
his
investigation diary on his computer made a contemporaneous recording
of the day’s events difficult. Often he was only able
to summarise
the day’s events when he had returned to his office and had an
opportunity to do so. In certain instances this meant
he would record
the previous day’s events only the following morning. He also said
that because his diary was stored in his computer
from notes made
contemporaneously, it was possible for him to add supplementary
information to earlier entries.
83.
Barkhuizen was also questioned with regard to a statement made by
Prof. Knobel, and which appeared in a newspaper, indicating
that he
(Prof. Knobel) was denying the fact that the deceased had been
sexually assaulted. In his response thereto, he told the Court
that
he got an impression that Prof. Knobel had no conclusive evidence
that the deceased had been raped. He further told the Court
that
Prof. Knobel appeared annoyed when he asked him about the deceased’s
alleged rape.
84. Where
necessary, Barkhuizen made concessions. He conceded, for example,
that out of fifty-eight (58) people whose fingerprints
were taken,
only eight people were positively linked. He also told the Court that
when Willem de Klerk Junior arrived at the scene
he was emotional,
and occasionally he would cry. This was corroborated by Detective
Superintendent Roelofse, who was also at the
scene when De Klerk
Junior arrived.
85. The
Court has carefully considered the evidence placed before it by the
State. In evaluating the evidence of each witness we have
had regard
to the fact that most of them were subjected to lengthy and intensive
cross-examination. Without exception they gave their
evidence
satisfactorily, answering questions clearly and directly.
86. Much
of cross-examination related to matters which were never otherwise
contested or contradicted by defence evidence. Many submissions
were
made to witnesses suggesting that the defence would be leading
contradictory evidence, for example that the deceased was alive
and
driving her car on the afternoon of Monday the 3
rd
December 2001; newspaper articles and an e-mail with red herrings
intended to raise all sorts of possibilities and mud-dying the
water
unnecessarily.
87. It
cannot be said that any of the State witnesses were evasive or
palpably dishonest or untruthful. Such discrepancies and/or
contradictions as there were, were of a minor nature and in no way
caused the Court to doubt the veracity or reliability of the State’s
witnesses.
88. The
one and only witness called by the Defence, Dr Marx, actually
supported the State’s DNA expert and said that he could not
find
fault with her tests and conclusions.
89. At no
stage during the course of this trial was a defence of any sort
disclosed or suggested. The Defence is of course not obliged
to do so
but in the absence of any Defence evidence the Court has no way to
evaluate the State’s case against anything else. The
State’s
evidence stands on its own, uncontested and uncontradicted. The Court
therefore comes to the conclusion that it can be
accepted and that it
is sufficient in all material aspects to prove the following facts:
Factual
Findings
During
December 2001 the deceased, Mrs Marike de Klerk, lived in an
apartment of the Dolphin Beach Complex at Table View in the
district
of Cape Town.
Vehicular
access to this complex is controlled at its entrance by security
personnel of the firm Securicor Gray Security. Access
to the complex
was not controlled on its Western, Eastern or Southern sides. In
fact, footpaths from the beach, west of the complex
allowing free
pedestrian access thereto are clearly seen on photograph 8 of
“Exhibit B”. Accused worked for the firm Securicor
Gray Security
as a Security Guard Grade C and was a colleague of Kem, Ntshuba and
other State witnesses who work for the same firm.
This is common
cause.
During
the evening of the 2
nd
December 2001 the accused,
accompanied by Mzwabantu Dyasi (also known as “Botyo”) travelled
from Khayelitsha to Blouberg by
taxi, after having withdrawn R300
from his bank account at an ATM (leaving a balance of R289). The
accused told Botyo that he was
going to borrow a car from a friend
to go to Port Elizabeth. The driver of the taxi, a white VW Jetta,
was paid R150 by the accused
and they were dropped off at a Total
Garage in Blouberg at about 21h00, and went into the garage’s
shop. The accused was wearing
a green cap. At the garage the accused
told Botyo to wait for him while he went to his work to find the
car. This is clear from
the evidence of Botyo and “Exhibit VVV”
reflecting the R300 withdrawal.
Before
leaving the garage the accused telephoned Fredson, one of his
colleagues at the Dolphin Beach Security Guard Room and asked
to
speak to another colleague, Ntshuba. Fredson could not hear one side
of the conversation but gleaned therefrom that the accused
was
looking for another colleague, Kem. This was confirmed by Ntshuba
who said that the accused wanted to borrow Kem’s car because
friends with whom he had been partying had left him stranded.
The
accused contacted Kem who was on duty as the Night Auditor at the
Dolphin Beach Hotel, which is part of the complex, at 23h50
on the
2
nd
December 2001. He told Kem the same story and asked
to borrow his car. Kem refused. A short while later the accused made
an appearance
at the guard house where he was seen by Fredson and
Ntshuba. He was wearing a dirty white T-shirt; a green cap and
trousers. He
was not drunk, but had been drinking. The accused
approached Kem at the Reception Desk where he was working and again
asked to
borrow the car. Kem again refused to lend the accused his
car, whereupon the accused left. Kem also described the accused’s
clothing
as a white T-shirt; green cap and trousers. The accused was
last seen leaving the complex and walking towards Blouberg.
At
about 01h00 on the 3
rd
December 2001 the accused returned
to the garage from where he telephoned a taxi company, Unicab, to
hire a taxi to take him and
Botyo back to Khayelitsha. Joumar, the
dispatcher for Unicab taxis said that he received a call from
someone who identified himself
as Mboniswa and gave a cellular
telephone number 083 683 7507 (the accused’s cellphone number)
just after 01h00 on the 3
rd
December 2001. He arranged
for a taxi driver, Lucky Masoka, to take the accused to Khayelitsha
for R300. Masoka duly picked up
the fare, two people, demanded and
got the R300 before moving off and took the two men to Khayelitsha.
There can be no doubt that
the two were the accused and Botyo. Botyo
said in evidence that they were taken back to Khayelitsha by taxi,
and Mr Mohamed in
cross-examining Masoka to establish the accused’s
condition referred to “the accused” leaving no doubt that he and
Botyo
were the men he took to Khayelitsha.
When
Botyo got home, between 02h00 and 03h00 on the 3
rd
December 2001, he told his sister, Victoria (the accused’s
girlfriend), that the accused wanted to see her. She went to his

residence.
In
her presence the accused took money out of a wallet. She saw him
counting out R20 and R50 notes, totalling about R300. They went
to
bed and she found it strange that the accused was very restless and
gasping for breath. When they woke up later that morning
the accused
telephoned one of his supervisors to say that he was not feeling
well and was not going to report for duty.
At
04h50 on the 3
rd
December 2001 the accused telephoned the
Securicor Gray Security Control Room at Woodstock and told Mbeka
that he was not feeling
well and that he was going to see a doctor.
This is the call to which Victoria had referred and was made on Mrs
de Klerk’s cellular
telephone, using her SIM card. This was made
very clear by Hilda du Plessis who works for MTN and picked up the
record of the call
– see “Exhibit HHH”.
Later
that morning the accused received a call from Ntshuba asking him
when he was going to relieve him. The accused told Ntshuba
that he
had already advised the Control Room that he was going to see a
doctor. At 07h30 the accused again contacted the Control
Room and
told Collins that he would not be going to work. These calls were
received and made on Mrs de Klerk’s cellular telephone
according
to the MTN record of calls made and received. At this stage the
accused was using his own SIM card.
At
about 08h00 on the 3
rd
December 2001 Victoria got out of
bed and it was then that she saw a black Nokia5110 cellular
telephone and a gold ladies’ wristwatch
on a table in the
accused’s room. When she asked him about the telephone he said
that he had got it at work. Questioned about
the watch, his reply
was that “she must not try to know everything”. The watch was
later identified as having belonged to Mrs
de Klerk. During the
course of the same day the accused sent a money order to his mother
in Port Elizabeth for an amount of R650.
This came out during the
cross-examination of Barkhuizen – see “Exhibit WWW”.
On
Monday the 3
rd
December 2001 between 08h30 and 09h00
while still on patrol, Cornelius, who was a Section Leader at
Securicor Gray Security at
Dolphin Beach picked up a torch on a path
close to “Block D” of the complex. He kept the torch in the file
in the Guard Room
and later gave it to the investigating police
officers. The torch with the logo “W.O.F.” was later identified
as being similar
to one owned by Mrs de Klerk.
Two
appointments Mrs de Klerk had on Monday the 3
rd
December
2001 were not kept. One was for 08h30 to have the car serviced. The
other was with her beautician for 13h00.
Mrs
de Klerk was to have had a dancing lesson from her instructor John
Thebus at 19h00 on the evening of the 3
rd
December 2001.
There was no reply when her apartment was called from the Security
Guard Room. Thebus looked for her car in the
parking area but did
not see it there. When he tried to telephone her from his house,
there was no reply.
Mrs
de Klerk’s body was discovered in the bedroom of her apartment at
about 16h30 on Tuesday the 4
th
December 2001. The
circumstances leading to the discovery are well documented in the
evidence of Cornelius; Ntshuba; Yolanda Wright,
the beautician whose
appointment had not been kept; and Dawn Roux, a neighbour.
Superintendent
Barkhuizen, the investigating officer in this case, arrived at the
scene and immediately formed the opinion that
Mrs de Klerk had been
murdered because of the injuries to her face and neck. Prof. Knobel,
the Senior Government Pathologist, also
visited the scene. He
examined the body and made notes for a preliminary report. He came
to the conclusion that the probable cause
of death was throttling
and that she had been dead for twenty-four (24) to thirty-six (36)
hours or longer. Swabs were taken for
analysis. The deceased had
also been stabbed in the left shoulder blade area.
Barkhuizen
conducted an investigation of the apartment. He found that a sliding
door leading to the balcony was closed but not locked.
Another door
in the lounge was also closed but not locked. In a handbag found in
the bedroom he discovered a purse and a cheque
book. The purse was
empty and after a search through the apartment he could find no
cash. He also found a business card in the
handbag on which was a
cellular telephone number. This led him to believe that the deceased
owned a cellular telephone, but he
could not find any cellular
telephone in the apartment. He suspected that it may have been
stolen
The
following day Barkhuizen contacted an informant and as a result of
the information he received he went to the Control room of
Securicor
Gray Security in Woodstock, where he found that at 04h50 on the 3
rd
December 2001 the accused had booked off sick. Later the records of
MTN revealed that this call had been made from the deceased’s
cellular telephone. The accused was arrested just after 16h00 on the
5
th
December 2001 and taken to Bishop Lavis Police
Station where he later that evening made a formal statement to
Barkhuizen. Certain
information furnished by the accused to
Barkhuizen before the formal statement was recorded caused
Barkhuizen to have two witnesses,
Kem and Ntshuba, to be brought to
him to have statements taken from them.
With
the accused’s consent Barkhuizen searched his residence and in the
pocket of a coat hanging behind the door he found a black
torch
(“Exhibit 3”), with letters “LTA” embossed on it. This torch
was also later identified as being similar to one owned
by the
deceased. The accused was then taken to Parow Police Station in the
early hours of the 6
th
December 2001.
The
accused returned to work on Wednesday the 5
th
December
2001 where he was told by Cornelius that he was the last person to
be seen at the Dolphin Beach Complex on the night in
question and
that the Police would be coming to speak to him first. His reaction
was to say “I know”. Some time during that
day the accused sent
an SMS message to Victoria in Xhosa telling her to hide the cellular
telephone and the watch she had seen
on Monday morning. She hid the
items, with two other silver watches in her brother’s room. After
his initial investigation on
the night of the 4
th
to 5
th
December 2001 Barkhuizen locked the apartment, secured it and handed
the key to the Forensic Team who over the next few days conducted
a
thorough search and took various samples for DNA analysis.
At
about 03h00 on the 6
th
December 2001 the accused was
taken to Victoria’s house where a search was carried out by the
Police. Victoria then learned that
the accused was a suspect in the
murder of Mrs de Klerk and that her cellular telephone was missing.
She denied knowing anything
about the cellular telephone when asked
by the Police. Later that morning she gave the cellular telephone
and the watches to Samuel
Mehlwana to look after because she did not
want the Police to find them in her possession.
At
about 17h00 on the 6
th
December 2001 the accused called
for Barkhuizen to come to him and said he wanted to make a
statement. Barkhuizen explained his
constitutional rights to him but
the accused chose to make a statement to a magistrate, which he did
later that night.
On
the 7
th
December 2001 Victoria was again questioned by
the Police. Victoria accompanied Barkhuizen to Mehlwana’s home
where the two watches
and the cellular telephone were hidden.
Because
he had been implicated by the accused in his statement to the
magistrate, John Thebus was detained and questioned by Barkhuizen.
Thebus gave an account of his movements on the night of the 2
nd
December 2001, handed his clothes to the Police for DNA testing,
underwent a lie-detector test and gave him the names of witnesses
who could support his statement. Thebus was released the following
day.
On
the 10
th
December 2001 a search was conducted of the
grounds of the Dolphin Beach Complex. Two plastic yellow gloves were
found as indicated
in “Exhibit B”, photograph no. 5. One of
these gloves had traces of blood on it. The gloves were tested for
DNA; the blood
proved to be that of the deceased. Mixed DNA was
lifted off the inside of the same glove and proved to be that of the
accused and
another unidentified person(s).
Barkhuizen
and Speed returned to the scene of the crime on the 11
th
December 2001 and found the handle of the knife with which the
deceased had been stabbed inside an ottoman in the passage.
On
the 7
th
January 2002 Mr FW de Klerk identified the gold
watch (“Exhibit 1”) as the one he had bought for Mrs de Klerk in
Zurich. He
also identified the two torches as having been given to
Mrs de Klerk on social occasions during the time they were married.
The
chances of anyone else having two similar torches are so remote
as to be discounted.
A great
deal of evidence relating to DNA specimens collected and tested was
led in respect of which the Court can make its definite
findings. In
particular the yellow glove on which the deceased’s blood was found
also had traces of the accused’s DNA which was
mixed with DNA
belonging to other unidentified persons. This took the case no
further as the evidence clearly showed that the glove
in question
could have been used by other members of the Securicor Gray Security
personnel.
Trial-within-a-trial
90. The State had information that the accused had made
a statement to the Police and a statement to a magistrate in Cape
Town. To
that end the State wished to hand up to Court the statements
allegedly made by the accused. Defence counsel objected, inter alia,
on the basis that same were not made freely and voluntarily, and that
certain of accused’s constitutional rights (such as the right
to
legal representation) were not explained to him. In the circumstances
this led to a trial-within-a-trial. Several witnesses were
called by
the State to testify in the trial-within-a-trial.
91. Detective Superintendent Michael Anthony Barkhuizen
gave evidence that he and Detective Constable Speed had arrested the
accused
shortly after 16h00 on the 5
th
December 2001 at
the Dolphin Beach Complex. Barkhuizen introduced himself and told the
accused that he was investigating the murder
of Mrs de Klerk, and
that they had information to the effect that the accused was linked
thereto. His rights, such as the right to
legal representation and
the right to remain silent etc. were explained to the accused at the
time of his arrest. He gave evidence
that this occurred in the
Security Guard Room in the presence of Speed, Cornelius, Ontong and
two security officers. This was corroborated
by Speed and Ontong.
Barkhuizen and Speed thereafter took the accused to Bishop Lavis
Police Station for questioning. On the way
to the police station the
accused indicated to him (Barkhuizen) that he had left his cellphone
at Dolphin Beach in the room where
he was eating before his arrest.
Barkhuizen then telephoned Cornelius and asked him and Inspector
Ontong to keep it safely. After
his constitutional rights were
explained to him and accused indicated he understood them, he was
asked whether he knew anything about
Mrs de Klerk’s murder.
Whereupon the accused made an exculpatory statement to Barkhuizen.
92. On arrival at the Bishop Lavis Police Station the
accused was taken to the charge office. The handcuffs were removed
and leg irons
were put on. This was standard procedure as handcuffs
were too uncomfortable. The accused was shown the notice (SAP 14 A)
which contained
the constitutional rights of an accused person. The
notice is written in all official languages, and although the accused
spoke good
English, he was provided with the Xhosa version as he had
indicated that he was Xhosa speaking. He read the Xhosa version but
signed
the English version which was handed up to Court as “Exhibit
AA”. Barkhuizen said that it was explained to the accused that the
two documents contained exactly the same information, though in two
different languages.
93. Barkhuizen had a short interview with the accused in
relation to comments that the latter had made on the way to the
police station.
Barkhuizen testified that the accused’s comments in
his opinion constituted an alibi. Barkhuizen asked Speed to keep an
eye on
the accused while he made some further investigation.
Barkhuizen went to his office to interview two witnesses and finished
at about
22h00. Thereafter he returned to Speed’s office and had a
further short interview with the accused. Barkhuizen asked the
accused
if he would agree that his earlier comments be written down.
The accused was also informed that his statement would be recorded on
audio/video. The accused agreed.
94. Barkhuizen and Speed had to prepare the recording
facility and so had to leave the accused in Brian Swart’s office,
who is also
a policeman stationed at Bishop Lavis Police Station. The
audio/video recording was done in the presence of Barkhuizen, Speed,
the
accused and Detective Sergeant Chauke who interpreted for the
accused. During the recording the accused was asked to take off the
top that he was wearing, and Barkhuizen noticed some scratch marks on
the accused’s body. The accused said that they were old marks.
Barkhuizen’s interview with the accused was duly recorded on video
and audio tape while Barkhuizen kept his own notes (“Exhibits
Y and
Z”). The audio/video recording machine, Barkhuizen said, records in
triplicate. One copy is sealed in an exhibit bag and
the accused had
to sign that he witnessed the sealing. The second copy is used by the
detective for investigation purposes and the
third is supplied to the
defence counsel.
95. The accused was taken to Khayelitsha after he had
agreed that his residence be searched. He travelled in the same
vehicle with
Barkhuizen, Speed and Booysen. The investigating team
first went to the girlfriend’s home and then to the accused’s
residence.
After the search the accused was taken to Parow Police
Station for detention. The accused checked in at Parow Police Station
at about
04h40 on the morning of the 6
th
December 2001, as
per “Exhibit AA”, being the occurrence book. On the 6
th
December 2001 at about 17h00, Barkhuizen received a telephone call
from Inspector De Jager of Parow Police Station informing him
that
the accused wanted to see him urgently. On his arrival at the police
station Barkhuizen had a discussion with the accused, whereupon
the
accused made a report to Barkhuizen which was tantamount to a
confession. Barkhuizen explained to the accused that such information
could not be used as evidence in court unless the accused agreed that
it be taken down in the presence of a magistrate. Barkhuizen
further
warned the accused that once the statement had been recorded in the
presence of a magistrate it could be used as evidence
against him.
The accused agreed to go to a magistrate with a view to making a
confession.
96. Barkhuizen left the
accused to make the necessary arrangements and met Mr Gordon, an
attorney who had just arrived at the police
station, who said that he
was instructed by Securicor Gray (accused’s employer) to visit the
accused. Barkhuizen told him of the
accused’s decision to make a
statement to a magistrate. Gordon then consulted with the accused
privately in the cells. Barkhuizen
spoke to Gordon after the latter’s
interview with the accused and again mentioned the accused’s
decision to make a statement
to a magistrate, asking him if he could
go ahead. Mr Gordon declined to comment. Afterwards Barkhuizen asked
the accused if he still
wished to make a confession. The accused
agreed. Barkhuizen then telephoned the Directorate of Public
Prosecutions and asked for
the arrangement that a magistrate be
available after hours in Cape Town for purposes of making a
confession. Arrangements were also
made for the availability of a
policeman who was not involved in the investigation to take the
accused to a magistrate. Sergeant
Barnard from Wynberg Police Station
took the accused to Magistrate Le Roux in Cape Town. Thereafter the
accused was taken to a District
Surgeon for examination. The doctor,
according to Barkhuizen’s knowledge, found nothing wrong with the
accused. The accused did
not complain about any ill-treatment from
the Police. Barkhuizen, despite lengthy cross-examination, remained
calm and consistent
in his testimony. There were no material
contradictions in his evidence. He did not exaggerate in any way, as
the record clearly
shows.
97. Detective Constable Kenneth David Speed also gave
evidence with respect to the accused’s arrest. Speed said that he
was present
when the accused was arrested. He was asked by Barkhuizen
to handcuff the accused at the Dolphin Beach Complex. The arrest was
effected
in the Security Control Room at the entrance to the complex.
According to Speed’s testimony, also present where and when the
accused
was arrested were Inspector Ontong, Cornelius and two other
Security Officers.
98. Speed corroborated Barkhuizen’s evidence that the
latter introduced himself by name and rank, and told the accused that
he was
investigating the murder of Mrs de Klerk. Speed said that
Barkhuizen informed the accused that he was arresting him because the
investigating
team had received information that the accused might be
linked to the murder in question. Speed further corroborated
Barkhuizen’s
evidence that the latter warned the accused about his
constitutional rights, i.e. the right to remain silent and the right
to legal
representation. At this stage Cornelius showed Speed a torch
that had been found in the complex, which Speed handed to Barkhuizen.
Speed also testified that in the car, on the way to Bishop Lavis
Police Station, the accused initiated a conversation in which he
told
them that his cellular telephone had been left in the complex, in the
room where he was having his meal immediately prior to
his arrest. He
said it was a Nokia 3310 and asked for its safekeeping. Barkhuizen
then telephoned Cornelius and Ontong and asked
them to keep the
cellular telephone safely. Speed said that the accused also told them
that he was not involved in the murder of
Mrs de Klerk. Speed
observed that the accused was relaxed, bordering on arrogance, and
was confident of what he was saying.
99. Speed testified further that on arrival at Bishop
Lavis Police Station, the accused was shown the SAP 14 A, a document
containing
constitutional rights of an accused person. Speed said
that the accused was given a chance to read the Xhosa version and
asked to
sign the English version as the latter was detachable from
the book. Both versions were handed up to Court as “Exhibits X and
X1”
respectively. Speed also told the Court that the accused
understood the document as he was Security Guard Grade “C”.
Constitutional
rights of arrested persons are taught to Grade C
security trainees as they are also required to arrest people from
time to time.
Speed was informed by the Training Officer that the
accused had received this training. The accused himself confirmed to
Speed that
he underwent such training. The accused, according to
Speed, had neither complaints nor questions at that stage. Handcuffs
were removed
and the accused was then footcuffed. Later at about
22h42 the accused’s statement was recorded on an audio/video
machine. Until
that time, the accused was in Speed’s office. At no
stage did four detectives interrogate the accused simultaneously as
had been
alleged by defence counsel during cross-examination. When
Speed testified he described the recording procedure in the same
manner
as Barkhuizen did.
100. Afterwards, they proceeded to Khayelitsha to search
the accused’s residence. Speed testified that the accused was with
him,
Barkhuizen and Booysen in the Police vehicle. Speed said on the
way to Khayelitsha they stopped at a garage and Booysen gave him
some
money to buy cold drinks for all of them, including the accused.
After the search the accused was taken to Parow Police Station.
Speed
saw the accused again later at about 21h00 on the 6
th
December 2001. Barkhuizen told Speed that the accused wanted to make
a statement before a magistrate. Speed, as requested by Barkhuizen
and Booysen, asked Sergeant Barnard from Wynberg to take the accused
to a magistrate in Cape Town. While Speed was waiting for Barnard,
Gordon arrived and said that he came to consult with the accused.
Gordon went inside and emerged after about fifteen minutes. Gordon
informed Barkhuizen that he had talked with the accused, and that he
could not disclose what the contents of the discussion were
as same
was privileged communication between attorney and client.
101. Barnard subsequently arrived and booked the accused
out of the cells. Speed met the accused later at night. Speed and
Barnard
then took the accused to the District Surgeon for
examination, as instructed by Barkhuizen. When they arrived at Karl
Bremer Hospital,
Speed advised the surgeon that the accused had made
a statement before a magistrate and that the surgeon should take
samples of hair
and blood for DNA testing purposes. The District
Surgeon did not find any fresh wounds on the accused’s body, but
noted down some
old scars. Speed corroborated Barkhuizen’s evidence
in material respects, and he remained consistent throughout the
cross-examination.
Speed was undoubtedly a good witness.
102. Sergeant Barnard from Wynberg Police Station, who
took the accused to the magistrate for purposes of a confession, also
testified.
He gave evidence that he received a telephone call from
Speed on the 6
th
December 2001 at about 20h00. Barnard
said Speed asked him if he could take a suspect who had to make a
statement before a magistrate
in Cape Town. Mr Hendriks took Barnard
to Parow Police Station. On arrival Barnard booked the accused out of
the police cells and
took the latter to the Magistrate’s Office in
Cape Town. As soon as they arrived there the accused was taken inside
after having
his handcuffs and footcuffs removed. Barnard was left
outside. At about 23h00 Magistrate le Roux told him that he had
finished. Barnard
and the accused thereafter returned to Parow Police
Station.
103. Barnard corroborated Speed’s evidence that they
both took the accused to a District Surgeon for examination. Barnard
further
testified that he was not involved in the investigation in
question. Barnard said that the accused seemed relaxed. When he asked
the accused if he was well or had any complaint, the latter did not
complain about anything.
104. Detective Inspector Clive Joseph Ontong, who was
present when the accused was arrested at the Dolphin Beach Complex,
was also
called to testify. He corroborated Barkhuizen’s and
Speed’s evidence on the whole incident surrounding the arrest. He
testified
that when Barkhuizen and Speed took the accused to Bishop
Lavis, he remained at the complex because the Forensic Team had
arrived
and he wanted to join them. While Ontong was still in the
complex, Barkhuizen telephoned him and asked him to look for the
accused’s
cellphone in the storeroom, which he did.
105. When Ontong arrived at the police station, he found
the accused in Speed’s office, with leg irons and no handcuffs. He
had
a casual talk with the accused. They communicated in English. He
asked him what his name was; where he stayed; how long he had been
in
Cape Town and what his mother’s telephone number was. Ontong
testified that when he asked the accused his mother’s telephone
number, the latter pleaded with him not to call his mother to tell
her that he (the accused) had been arrested in connection with
the
murder of Mrs de Klerk. Ontong said that he spent about twenty to
thirty minutes in Speed’s office, and while he was there
Chauke and
Swart came in and out but did not question the accused. Ontong
corroborated the other witnesses’ evidence that the accused
was
warned of his constitutional rights at the time of his arrest at the
Dolphin Beach Complex.
106. Detective Inspector Brian Johannes Swart from
Bishop Lavis Police Station also took the witness stand. He gave
evidence that
on the 5
th
December 2001 in the evening, he
was asked by Barkhuizen to fetch a witness, Sipho Kem, from the
Dolphin Beach Complex. After the
witness had been interviewed he took
him back to the complex, and thereafter went home. He returned from
home at about 22h00 to the
police station and he was asked to look
after the accused while Barkhuizen and Speed went to prepare the
recording facility. Swart
corroborated the other witnesses’
evidence that Barkhuizen, Speed, Ontong and himself were never in
Speed’s office at the same
time interrogating the accused.
107. Detective Sergeant David Chauke, who also worked at
Bishop Lavis Police Station, was also called to give evidence. Chauke
told
the Court that on the 5
th
December 2001 he left his
office at about 13h00 in order to investigate some other cases. He
returned to the station later in the
afternoon. At about 17h00 he was
asked by Barkhuizen to fetch a witness at Makana Square in Langa
Township, which he did. Barkhuizen
interviewed the witness and took
down a statement in his office, and Chauke interpreted. Barkhuizen
indicated that he would need
his assistance later, therefore he did
not leave the building. In the mean time he went to Speed’s office,
where he saw the accused,
together with Speed. He introduced himself
to the accused. He had no further discussion with the accused as the
latter had a conversation
with Speed.
108. At about 22h00, Barkhuizen asked Chauke to be
available when the accused’s statement was recorded, so that he
could interpret.
During the recording of the statement, Chauke had an
impression that the accused spoke very good English. He interpreted
at the beginning,
and thereafter stopped when he noticed that the
accused would respond before he could interpret (as the accused did
in Court when
he gave evidence – as the record clearly shows).
However, he remained in the room as a standby, i.e. in case there
were aspects
in which the accused needed interpretation. Chauke
observed that the accused was relaxed and extremely calm during the
recording.
109. After the recording was completed they went to
Khayelitsha, the accused’s place of residence. On the way one
vehicle that was
used by the “Operation Crackdown Unit” needed
refuelling. For that reason they had to stop at a filling station.
While they were
waiting for the other vehicle to refuel, Director
Booysen, who was travelling with them, bought all of them (including
the accused)
some cold drinks. They proceeded to Khayelitsha, and the
accused got out of the car when they were at his residence. The
search was
conducted and thereafter Chauke took the accused in his
car to Parow Police Station, where the latter was subsequently
detained in
the early hours of the 6
th
December 2001.
110. On arrival at Parow Police Station Chauke brought
the “SAP 14 A” form. The form was actually a notice of rights of
a detainee
in terms of the constitution. The accused had to complete
the form. When Chauke tried to explain it to the accused, the latter
said
that he understood what it was because he had already read and
completed the same form at Bishop Lavis Police Station. He tried to
show the accused the Xhosa version of the form, and again the accused
said he knew what it contained. The accused then signed the
form.
Chauke made an entry for the detention of the accused. Chauke
remained consistent in his testimony despite extensive
cross-examination.
I am quite satisfied that he was a reliable
witness.
111.
Dr Bedwill Jentel, a District Surgeon at Karl Bremer Hospital,
Bellville gave evidence that he was on duty on the 6
th
December 2001 and had examined the accused, in order to determine if
there was any evidence of police brutality. He examined the
accused
for approximately one hour and completed the requisite medical
report. This medical report was handed up to Court as “Exhibit
DD.”
In his testimony Dr. Jentel stated that the accused had informed him
that he had no medical problems or complaints. Dr. Jentel
testified
that the accused appeared fine emotionally and that he did not find
any physical injuries on the accused, only old marks
which Dr. Jentel
estimated were more than three months old. Under cross-examination
Dr. Jentel stated that a blood specimen was taken
from the accused,
with his consent and that the specimen containers were sealed in the
presence of the accused and the investigating
officer.
112. Inspector Anton Groenewald, stationed at Parow
Police Station, testified that he had received and booked the accused
into the
Parow police cells at 04h40 on the morning of the 6
th
December 2001. In his evidence Groenewald stated that he had spoken
to the accused who indicated that he had no complaints or requests.

The accused appeared relaxed and did not look tired. Groenewald
testified that he had visited the cells and found the accused
sleeping
and then later at 06h16 he had personally given the accused
food and coffee. Groenewald told the Court that he remembered the
accused
well because he was being detained in connection with an
unusual case involving the murder of Mrs de Klerk, the former wife of
ex-President
FW de Klerk.
113. Another witness was Hendrik Johannes le Roux, the
magistrate before whom the accused allegedly made the statement. Le
Roux gave
evidence that on the 6
th
December 2001 he
received a telephone call and was told that someone wanted to make a
statement. He had no idea what the statement
in question was about,
or who wanted to make it. The accused arrived at the magistrate’s
office around 21h00 with a policeman.
114. From Le Roux’s observation, the accused was well
and relaxed. He did not look tired. The accused even wanted to make a
demonstration,
but he was stopped by the magistrate from doing so. Le
Roux then brought a form that had to be completed when a confession
was being
made from the Control Magistrate’s office. The form was
written in English. The interpreter, who introduced himself as
Mxolisi
Edman Maboyana, had arrived at that time. Le Roux explained
the contents of the form, as well as the constitutional rights of a
detainee
to the accused. The latter confirmed that he understood. Le
Roux also explained to the accused that he was not obliged to respond
to all the questions, and that once the confession was recorded it
could be used as evidence against him in court. Initially the
accused
spoke in English, but he was advised to take advantage of the
interpreter as he was available. Le Roux also told the Court
that he
understood the Xhosa language well, and therefore he would have been
able to see if the interpreter did not properly interpret
to the
accused.
115. Le Roux testified further that he noticed that the
rights of the accused relating to legal representation did not appear
on
the form. He therefore decided to add them with his own
handwriting, which he did. The accused understood and signed the
amendment,
as appears on the first page of the form, which was handed
up to Court and marked as “Exhibit BB”. All the questions on the
form
were answered by the accused
“verbatim”
. There was no
suggestion at all in cross-examination that magistrate Le Roux was
not telling the truth. No reasons were advanced
in Court during
argument as to why Le Roux’s evidence should be rejected.
116. Mxolisi Edman Maboyana, an official interpreter
employed at the Goodwood Magistrates’ Court since 1993, testified
that he had
been contacted at 20h40 on the 6
th
December
2001 and asked if he would be available to interpret for the accused,
who was going to make a confession before a magistrate.
Maboyana made
himself available. He testified that he was escorted to the office of
the magistrate in Cape Town, whereupon the magistrate,
Le Roux,
proceeded with the official formalities required in the taking of a
confession. Maboyana testified that he interpreted
Le Roux’s words
into Xhosa and the accused’s responses into English, for the
benefit of Le Roux. In his evidence Maboyana stated
that he found the
accused to be “
very brilliant
” and that the accused would
respond to questions before he (Maboyana) had interpreted what was
being read out to the accused by
Le Roux. In addition Maboyana
testified that the accused “
appeared calm and collected
”
and “
eager to make a statement
”. In his evidence Maboyana
stated that it was his signature that appeared on various pages of
“Exhibit BB”, the prescribed
form relating to a confession.
117. Athol Abraham Gordon, an attorney from a law firm
Findlay Tait
in Cape Town, gave evidence that Securicor Gray
(the accused’s employer company) was their client. The company had
instructed him
to visit the accused in the cells of Parow Police
Station. The aim of the visit was to ascertain whether the accused
experienced
any problems, and to provide legal advice if necessary.
Gordon arrived at the police station at about 19h00 on the 6
th
December 2001. He was referred to Barkhuizen, who informed him that
the accused had made a verbal statement and that the latter further
wished to make a confession. Gordon thereafter met the accused and
had a consultation with him. They conversed in English and there
was
no interpreter. Gordon formed a view that the accused understood
everything that they discussed. The accused was relatively calm
and
relaxed, although not necessarily happy. After consultation Gordon
decided that he would not represent the accused as there was
a
conflict of interest. When he was leaving, Gordon met Barkhuizen
outside. He did not disclose what he had discussed with the accused
as it was protected by the law relating to attorney/client privilege.
Gordon was a confident and calm witness throughout his testimony.
118. Inspector Cornelius Gideon de Jager was also called
to testify. De Jager worked at Parow Police Station but spent most of
the
day outside the station. He normally arrived for duty at 06h30.
He gave evidence that on the 6
th
December 2001 he returned
from his duties outside the station in the afternoon. While he was
walking past the cells, the accused
asked him to find Barkhuizen for
him. What he noticed about the accused at that time was that the
latter looked depressed and had
tears in his eyes. He went to look
for Barkhuizen and told him that the accused wanted to see him. He
left the station at about 18h00
that day, and he did not see the
accused again.
119.
Salomo Adams, who worked at the Parow Police Station, was also one
of the State witnesses. He told the Court that his duty was
to visit
the cells to establish if there was anything that the detainees
needed. On the morning of the 6
th
December 2001 he visited the cells as usual, accompanied by
Superintendent Philander. The procedure was to check each cell
individually
and note down each detainee’s complaint(s). Thereafter
he would enter the complaints in the occurrence book in the charge
office.
That morning the accused never indicated that he had any
problem or complaint.
120.
Marius George Carstens, an inspector at Parow Police Station, also
gave evidence. Carstens told the Court that on the 7
th
December 2001 he visited the cells at about 20h00. He saw the
accused, and the latter neither made a request nor had any
complaints.
121.
Sergeant Owenita Cornelia Beukes from Parow Police Station also
testified. She gave evidence that she was in charge of the police
station. She further told the Court that on the 6
th
December 2001 she arrived on duty at 06h30. She stated that part of
her duty was to visit the cells, check whether all the detainees
were
there and if they had any complaints or problems. No detainee,
including the accused, had a complaint that morning. Beukes told
the
Court that when she visited the cells the detainees had already had
their breakfast. Beukes further stated that she made cell
visits on
an hourly basis, and at no time did the accused complain of, or
request anything. She made records in the occurrence book
to that
effect. Beukes was a reliable and credible witness. The State then
closed its case in the trial-within-a-trial.
122. Thereafter the
accused, Luyanda Mboniswa, ascended to the witness box and testified
that he was born and schooled in Port Elizabeth
and that Xhosa was
his mother tongue. He testified further that it was 16h03 on
Wednesday the 5
th
December 2001 when the police arrived at
his place of work, the Dolphin Beach complex, and arrested him in
connection with the murder
of the deceased. Mboniswa stated that he
was eating in the storeroom when he was called by his colleague,
Bosch. He exited the storeroom
and saw three detectives. Two of the
detectives called him into the Security Control Room and
Superintendent Barkhuizen introduced
himself as the police officer
investigating the murder of Marike de Klerk and introduced his
colleague, Sergeant Speed. Mboniswa
testified that Barkhuizen had
informed him that he was under arrest for the murder of Mrs de Klerk.
He responded by stating that
he did not know what Barkhuizen was
talking about. According to Mboniswa’s evidence Barkhuizen then
told him that they would discuss
the matter further in his office. He
was then handcuffed by Speed and put in a police vehicle. Mboniswa
testified that at the time
he was 21 years old and it was the first
time that he had been arrested.
123. Mboniswa further
testified that they drove to Bishop Lavis Police Station and that he
was asked by Barkhuizen, in the presence
of Speed whether he liked
“
speedy money
”, and whether the deceased had “
practised
apartheid
” to him. Mboniswa told the Court that his answer to
both questions was “
no
”. According to Mboniswa, Barkhuizen
also asked him about his cellphone and Mboniswa informed him that he
had left it in the storeroom
at the Dolphin Beach complex.
124. Mboniswa’s evidence
was that his constitutional rights had not been explained to him at
the time of his arrest nor in the car
as he was being transported to
Bishop Lavis Police Station. Mboniswa testified that when they
arrived at Bishop Lavis he was given
a form (“Exhibit X 1”) to
sign. This form, which was handed up to Court, is in English and it
outlines constitutional rights
of a detained person. He was
instructed to sign the document and he did so. He stated that he was
not given any instructions to read
the document before signing it nor
was he given a Xhosa version by Speed. Mboniswa told the Court that
he was then taken to Barkhhuizen’s
office and thereafter to Speed’s
office. At that stage his hands remained cuffed behind his back. He
was footcuffed as well and
told to sit on a chair. While Speed was
busy at his computer, Swart entered, followed shortly by Chauke and
Ontong, whereupon all
four asked him a series of questions.
125. Mboniswa said the
four policemen interrogated him. He estimated that this went on for
about two to three hours. Mboniswa also
said that at that stage he
was tired and did not have any strength, that he was handcuffed,
footcuffed and hungry. One of the policemen,
whom Mboniswa could now
identify as Swart, told him that they would arrest Botyo and if he
did not tell the truth they would lock
him (Mboniswa) up as well.
Mboniswa testified that he was concerned and hurt and explained to
them that Botyo did not go any further
than the Total Garage.
126. Mboniswa also
testified that he had never wanted to make a statement and
furthermore that he was never properly advised of his
right to remain
silent or of his right to a lawyer, either before, during or
immediately after the interrogation in Speed’s office.
He testified
further that the purpose of being taken to the seventh floor was
never explained to him. He told the Court that had
he been advised of
his rights he would have sought legal advice.
127. Mboniswa told the
Court that when he was taken to the seventh floor in order for his
statement to be recorded Barkhuizen, Speed
and Chauke were all
present and no one asked his permission to record him on video. He
stated that although Chauke did interpret
there were occasions when
he would sleep. Mboniswa stated further that Barkhuizen had informed
him that he was going to be interviewed
first and that later he could
have access to a lawyer. He testified that he understood this to be a
promise that he would have access
to a legal representative. Mboniswa
told the Court that Barkhuizen had told him that the purpose of the
interview was to give him
a chance to prove his innocence. Mboniswa
stated that he felt compelled to make the statement and having done
so believed he would
be released. He testified that at that time he
had not had anything to eat or drink and although he was thirsty, did
not ask for
water. However, he later changed that version.
128. Mboniswa was then
escorted by the police to Khayelitsha where he was taken to his
girlfriend’s house and then to his own residence.
He testified that
he saw the police arrest Botyo and was hurt by this because he had
furnished them with reasons not to arrest him.
129. Mboniswa testified
that when he was taken to Parow Police Station at 04h40, he was very
tired and drowsy. He was also worried
about Botyo’s arrest. He
testified that although he had signed “Exhibit CC”, which set out
his constitutional rights, the document
had not been explained to him
by Chauke who claimed to be too tired and had simply told him to sign
the document because it would
take him too long to explain it. He
told the Court that the document was then placed in his pocket.
130. He also testified
that although breakfast was served on the morning of the 6
th
December 2001 he did not eat it. He told the Court that he had
requested the use of a telephone because he wished to telephone his
mother in Port Elizabeth, but De Jager had just stared at him as if
he had not heard him. Mboniswa told the Court that he had banged
on
the door, and when De Jager reappeared and asked him what the problem
was, Mboniswa asked to see Barkhuizen.
131. Mboniswa told the
Court that when Barkhuizen arrived he told him that he should go and
speak to a magistrate. When Mboniswa requested
access to a telephone,
Barkhuizen told him that he should first go to a magistrate and
thereafter he would allow him to use the telephone.
Mboniswa
testified that Barkhuizen had not informed him of any constitutional
rights such as the right to remain silent. Mboniswa
gave evidence in
respect of being brought before Le Roux and admitted that Le Roux had
informed him of his right to legal representation
but had not told
him specifically that it was possible to access a lawyer at 22h00.
When asked why he had responded in the negative
when asked by Le Roux
whether any promises had been made to him, he stated that he thought
that as a result of making a statement
Botyo would be released.
132. Mboniswa was
cross-examined at length and several material contradictions were
revealed during the cross-examination. These became
evident in his
testimony regarding the alleged interrogation that occurred in
Speed’s office. Initially he stated that the police
stopped when he
heard Kem in the corridor complaining that he had to leave because he
had to go to work. He later stated that they
stopped because
Barkhuizen instructed them to take him to the seventh floor for the
recording of the statement, and then at a later
stage he stated that
the questioning never stopped. He also stated under cross-examination
that he had in fact asked for, and had
been permitted to drink water
when Swart had taken him to the fingerprint room at Bishop Lavis
Police Station. It was put to him
that if he had asked for water why
he had not asked for food, if he was as hungry as he claimed to be.
133. There were further
contradictions in Mboniswa’s evidence. For instance, he was evasive
and did not respond when asked if “Exhibit
CC”, which set out his
constitutional rights and which he had signed at Parow was the same
document he had previously signed at
Bishop Lavis Police Station. He
could not tell the Court what it was that he was supposed to have
missed when signing “Exhibit
CC” and why it was never put to
Chauke that he, as Mboniswa was suddenly alleging, had been too tired
to read the form to him.
134. It was also clear
that at times Mboniswa was being economical with the truth. It was
pointed out to him that Groenewald had testified
that when he spoke
to Mboniswa at Parow Police Station he had indicated that he was
fine. When he was told that Groenewald’s evidence
had not been
disputed, Mboniswa testified that he did not know why that had not
been disputed by his counsel. He confirmed that when
he had woken up
at 10h00 he saw his breakfast by the grill. He testified further that
he had been given his lunch by De Jager. He
could not explain why in
the testimony given by Beukes the occurence book showed that fourteen
visits had been made to his cell and
yet he claimed to have
remembered none of them.
135. When asked about his
educational qualifications Mboniswa testified that he had passed
Matric and a Computer Literacy course at
Technikon, as well as
reaching “C” Grade as a security guard. He confirmed that in
order to reach this grade he had to pass a
number of courses which
were taught in English. He also stated that when he worked at Dolphin
Beach he had received instructions
from Cornelius in English. It was
also clear from the cross-examination that the accused had a good
understanding of English because
often he would respond to a question
before it had been interpreted to him.
136. When asked why he had
asked Barkhuizen to come to his cell at Parow Police Station, he told
the Court that it was because De
Jager had refused to give him access
to a telephone and because of an express wish to make a statement. He
conceded that nobody had
said to him that if he made a statement he
would be released. Mboniswa stated that Barkhuizen had never
explained any of his rights
to him but had simply asked him to go to
a magistrate to make a statement. He said that he did not know why it
had not been put to
Barkhuizen that he was lying when he testified
that he had fully explained his (Mboniswa’s) rights.
137. Mboniswa stated that
when he was taken to Le Roux he still had in his pocket the document
that he had signed at Parow, which
contained his rights. He admitted
that they were written in English and that he had read them while
eating a meal brought by De Jager.
He confirmed that he had read the
form because he saw the words “constitutional rights” written on
it. He told the Court that
he had understood the rights and in fact
had decided to exercise one of them by asking for the telephone. He
also confirmed that
some of the rights were the same as the ones
explained to him before he made the audio/video-recorded statement.
138. The accused appeared
to be a stranger to the truth with his evidence that he had not been
allowed to use the telephone to contact
his mother. When it was put
to him that he had the opportunity to ask Speed for the telephone
because Speed had taken him to the
doctor after he had made his
statement to Le Roux, he told the Court that there was no time for
him to do so. He later contradicted
himself by stating suddenly that
it was too late to use the telephone. When it was put to him that
Ontong had told the Court that
on the 5
th
December 2001
Mboniswa did not want to telephone his mother, he denied this but
could not tell the Court why it had not been put
to Ontong by his
defence counsel that he was lying.
139. The second defence witness was Mr
Martin Yodeiken, a clinical psychologist who had been in continuous
private practice for some
twenty-five years. He prepared a report
which was subsequently handed up to Court and marked as “Exhibit
FF”. He confirmed the
contents of the report. His evidence was that
he had consultation with the accused for a total of three-and-a-half
hours. Thereafter
he was able to compile a report on the profile of
the accused. He testified that the accused spoke reasonable, though
not good English.
140. His evidence was that the accused
was twenty-one years old at the time of the commission of the offence
in question in December
2001. The accused was suddenly being
interrogated over a long period of time by four policemen whilst he
was handcuffed. The interrogation
lasted for a long time and he had
nothing to eat nor drink except tap-water later on the day of his
arrest. This, coupled with the
fact that he had woken up much more
earlier in the morning in order to prepare for work and had been
working the whole day up until
the time of his arrest, at about 16h00
on the 5
th
December 2001, possibly had an effect on the
accused.
141. Mr Yodeiken’s evidence was that
the arrest of Botyo on the 6
th
December 2001 in the
presence of the accused possibly had an effect on him. His evidence
was that culminating with the arrest of
the accused’s girlfriend,
the Court can reasonably “
infer that the accused was brought to
a confessing state of mind as a result of the sequence of events
which had increased his level
of exhaustion, anxiety, stress and
experience of being intimidated”.
142. Mr Yodeiken testified that the
“
possibility cannot be excluded that he [the accused] was thus
brought to a confessing state of mind when he made his statement to
the magistrate
”. Mr Yodeiken also added that an arrest itself
is stressful by its very nature. Furthermore the interrogation that
was prolonged
against the background of an accused, and the fact that
he had not had something to eat on that particular day contributed to
a situation
whereby he was brought to a confessing state of mind when
he made the statements. The high watermark of Mr Yodeiken’s report
was
that the possibility could not be excluded that the accused was
brought to a confessing state of mind.
143. Mr Yodeiken was cross-examined by
the State quite effectively. He conceded in cross-examination that
his conclusions were based
on what the accused had told him. He also
conceded that three-and-a-half hours were not good enough to do a
full and proper assessment
of the accused. When it was put to him in
cross-examination that if the accused had not told the truth to him,
particularly in the
light of the accused’s allegation that he was
bombarded by a series of questions when he was being interrogated by
the Police detectives
on the day in question, he conceded that some
stress would therefore fall away in those circumstances.
144. In my view Mr Yodeiken’s
evidence cannot be safely relied upon. It is no more than
self-corroboration of the version given
to him by the accused. There
were no collateral and/ or objective sources to corroborate what Mr
Yodeiken said. Mr Yodeiken was not
even present in Court when the
accused gave evidence-in-chief. Furthermore, some of the things that
were told to him by the accused
were in conflict with the evidence
that was led by the accused before this Court. One example is on page
6 of the report, the last
paragraph, where it says “
he began to
feel afraid that the police may now beat him
”. In Court the
accused said in no uncertain terms that he was not afraid of being
beaten by the police.
145. This Court has had the benefit of
observing the accused who was in the witness box for at least two
full days. The Court is in
a far better position to make credibility
findings in relation to the accused than Mr Yodeiken, who merely
consulted with the accused
for some three-and-a-half hours and was
not even present in Court when the accused gave evidence-in-chief.
Even Mr Yodeiken conceded
that. It is abundantly clear from Mr
Yodeiken’s report that it was based almost entirely on what the
accused had told him. It is
clear from the report that the accused
did not tell him the truth in certain respects as indicated above.
146. Thereafter the defence closed its
case in the trial-within-a-trial.
147. On the 9
th
September
2002 I ruled the statement made by the accused to Detective
Superintendent Barkhuizen on the night of his arrest to be
admissible. Similarly the confession that was made by the accused to
magistrate Le Roux on the following evening was ruled admissible.
What follows in the judgment are reasons for the ruling in respect of
each of these statements. We shall first deal with the admission
that
was made to Detective Superintendent Barkhuizen on the 5
th
December 2001.
148. The evidence clearly established
that at the time of the arrest Superintendent Barkhuizen introduced
himself to the accused,
informed him that he was investigating the
murder of Mrs de Klerk, that he had information implicating him in
the murder and that
he was arresting him as a suspect in connection
with the murder. The evidence also reveals that Barkhuizen warned the
accused of
his rights in terms of the Constitution. Thereafter
Barkhuizen asked the accused whether he had understood what he had
been told,
to which the accused replied in the affirmative. This was
corroborated by Detective Sergeant Speed and Detective Inspector
Ontong.
149. Upon arrival at Bishop Lavis
Police Station the accused was taken into the charge office, where
his handcuffs were removed. He
was also officially informed of his
constitutional rights as contained on Form SAP 14 A (“Exhibit X1”).
Prior to signing the
English version, the accused was given the Xhosa
translation (“Exhibit X”) printed at the front of the book to
read. A copy of
the signed English version was torn out and placed in
the accused’s jacket pocket. Superintendent Barkhuizen’s evidence
was clearly
to the effect that he enquired from the accused whether
he was willing to make a formal statement which would be recorded in
writing
and on video. The accused agreed and thereafter arrangements
were made to get the facility on the seventh floor of the same
building.
150. At the start of the interview the
accused was warned of his rights in terms of the Constitution.
“Exhibit Y” before Court
clearly reflects that the accused was
warned of his rights. The Court also had the benefit of seeing a
video which was played. The
accused who testified also admitted that
he was warned of his rights at that stage by Superintendent
Barkhuizen. Furthermore he conceded
that he was still in possession
of the signed copy of his constitutional rights which had been placed
in his pocket at Bishop Lavis
earlier that afternoon. “Exhibit Y”
makes it abundantly clear that the accused was warned about his right
to remain silent throughout
the interview, the fact that he was not
compelled to make a statement or to answer any questions put to him,
and the fact that if
he made a statement it would be reduced to
writing and that it could be used as evidence in a court of law
against him. Furthermore
it is clear from “Exhibit Y” that the
accused was warned about his right to legal representation before
making a statement. The
accused elected to make a statement before
being consulted by a lawyer.
151. The evidence, in my view, clearly
reveals that the accused was left in no doubt about his rights before
he made a statement to
Superintendent Barkhuizen on the night of his
arrest. It is not the accused’s case that he was assaulted or
threatened by anyone
to make a statement. His rights had been fully
explained to him at the time of his arrest, at Bishop Lavis Police
Station when he
signed what was referred to in Court as his Bishop
Lavis constitutional rights, and thirdly before he made a statement
that was recorded
on the seventh floor. There can be no doubt that he
was fully informed of his rights before making the statement.
152. The statement that was made by the
accused during the interview is exculpatory in nature. It contains
substantially the same
information as at all times previously had
been given by the accused to Superintendent Barkhuizen. It is
inconceivable that anyone
could be forced to make an essentially
exculpatory statement regarding the crimes for which one has been
arrested. Mr Mahomed’s
contention was that even though the
accused’s rights may have been explained to him, given the fact
that he was shocked, he was
relatively young (he was twenty-one years
old at the time of the commission of the offence) and it was late at
night, the accused
did not have enough time to assimilate or to
understand that which was explained to him. In my view that argument
cannot hold water
in the circumstances of this particular case, for
the reasons given above.
153. Accordingly for these reasons I
ruled that the statement made to Superintendent Barkhuizen on the
night of the accused’s arrest
was admissible in terms of
section
219
of the
Criminal Procedure Act 51 of 1977
.
154. We now turn to the statement that
was made to the magistrate on the 6
th
December 2001. The
evidence clearly reveals that the accused checked in at the Parow
police cells at 04h40 on the 6
th
December 2001. He was
served breakfast and enquiries were made as to whether he had any
complaints, to which he indicated that he
had none. The record
clearly reveals that there were several visits during the course of
the day and on each occasion the accused
indicated that he had no
complaints.
155. The evidence was also that at
about 17h30 Inspector de Jager came in from outside and brought a
prisoner to the cells. Thereafter
the accused shouted and called him,
indicating that he wanted to speak to Barkhuizen. De Jager obliged
and telephoned Barkhuizen,
who arrived approximately an hour later.
This was the first contact that the accused had with any member of
the investigating team
since leaving Khayelitsha early that morning.
When Barkhuizen arrived at the accused’s cell, the latter made a
report to him that
he wished to make a confession. Barkhuizen
explained the legal position regarding the making of a confession
before a magistrate,
including the accused’s rights in terms of the
Constitution in this regard.
156. Prior to Superintendent
Barkhuizen’s arrival at Parow the accused had read through the SAP
14 A notice of rights in terms of
the Constitution. He testified that
he had completed reading the notice and had understood it.
Furthermore at about 19h00 on that
day Mr Athol Gordon, an attorney
representing the accused’s then employers, arrived at Parow Police
Station to attend upon the
accused. Barkhuizen informed Gordon that
the accused had indicated to him that he wished to make a confession
before a magistrate,
whereupon Gordon visited the accused in the cell
and consulted with him alone for just under an hour. Before leaving
the police station
Gordon again spoke to Barkhuizen, after which
discussion he was aware of the possibility that the accused would be
taken to make
a statement before a magistrate.
157. Barkhuizen testified that after
Gordon left he (Barkhuizen) went to the cell and enquired from the
accused whether or not he
still wished to make a statement. The
accused answered in the affirmative. It is common cause that
thereafter the accused was taken
to magistrate Le Roux in Cape Town
who immediately ordered that the handcuffs and footcuffs be removed
from the accused. Magistrate
Le Roux testified that he explained the
accused’s rights to him before he made a statement, and that this
took place in the privacy
of the magistrate’s locked office. Before
making the statement the accused was warned of his rights by
magistrate Le Roux. Furthermore
the entire proceedings in the office
were interpreted from English to Xhosa by an official court
interpreter, who testified and confirmed
same. The magistrate
testified that he could also speak and understand Xhosa.
158. In my view the evidence clearly
indicates that the accused had had a decent sleep the day before he
made a statement. Furthermore
he had had food, he had rested and
there can be no doubt that he made the statement freely and
voluntarily. It is important that
the accused had had the benefit of
being consulted by an attorney before he went to make a statement
before the magistrate. Undoubtedly
Gordon (the attorney) would have
been doubly vigilant in warning the accused of his rights. In the
view of this Court it is unthinkable
that an attorney would not have
advised the accused of his constitutional rights before he made a
statement to the magistrate. Even
if I am wrong in this regard, the
accused made a statement to the magistrate on the day in question
with full knowledge of his constitutional
rights which were explained
to him the previous day, and which were explained to him by
Barkhuizen before he made the statement.
159. The accused was not forced or
threatened to make a confession before the magistrate. Le Roux
himself testified that the accused
made the statement freely and
voluntarily. Furthermore, upon being asked, “
Why do you wish to
repeat this statement?
”, the accused answered “
I want to
tell the truth now: what I said previously was not the truth
”.
The accused also added, “
something which comes from my heart
”.
This was in response to the question “
Did any person tell you
what to say in your statement, or will your statement comprise the
things which you have personally experienced
and observed and which
are within your knowledge?”
This appears in “Exhibit BB”.
160. In my judgment, this is a classic
case where the requirements prescribed by
section 217
of the
Criminal
Procedure Act 51 of 1977
relating to the admissibility of a
confession by the accused were met. There can be no doubt on the
evidence before me that the statement
was made by the accused freely
and voluntarily, that the accused was in the sound and sober senses
and without having been unduly
influenced in relation thereto.
161. Furthermore the proceedings
relating to the making of a confession were fully interpreted or
translated to the accused, as per
the evidence of the interpreter and
magistrate Le Roux before whom the confession was made. The accused’s
evidence that he was
brought to a confessing state of mind as a
result of not having a decent sleep, and the fact that the Police had
arrested Botyo in
his presence, cannot reasonably be true in the
light of overwhelming evidence by State witnesses against the
accused, particularly
relating to the accused’s emotional state at
the time.
162. Almost all State witnesses
testified that the accused looked calm and comfortable. Magistrate Le
Roux, before whom the statement
was made noted on “Exhibit BB”
that the accused “looked comfortable”.
163. Equally the defence argument that
the accused’s knowledge of English was limited and therefore the
possibility exists that
there was misunderstanding between him and
the magistrate cannot hold water.
Defence’s case
164. Mr
Gamble
SC, leader of the defence team,
indicated to Court that the accused wished to exercise his
constitutional right to remain silent.
Accordingly the accused did
not give evidence in Court. Defence counsel then proceeded to call Dr
Munro Peter Marx, a DNA expert
in private employment. Dr Marx is a
Managing Director of Unistel Medical Laboratories (Pty) Ltd, which is
attached to the University
of Stellenbosch.
165. He
gave evidence-in-chief with reference to “Exhibit YYY” and
indicated that he would have liked to have lowered the minimum
threshold, and that this would have provided trouble waters. However,
he told the Court that this could have been a helpful academic
exercise as well. “Exhibit YYY” contained Dr Marx’s DNA report
as well as a recent article on the interpretation of complex
forensic
DNA mixtures, which appeared in a Croatian Medical Journal. Dr Marx
explained to the Court that an “Analytical Threshold”
is a safety
mechanism which is contained in the international guidelines for
forensic DNA testing. He further conceded that the threshold
was
dropped
in casu
.
166. In
cross-examination, Dr Marx praised the methodology of the State’s
Laboratories, given that they deal largely with mixed
DNA profiles.
He also admitted in Court that he accepted Otto’s conclusion as
being correct.
167. In
the considered view of this Court, Dr Marx’s evidence did not take
the case any further. He was the only witness whose evidence
was led
by the defence, hence this was the end of defence’s case.
Evaluation
of evidence
168. On
evaluating the facts found to have been proved, the Court comes to
the following conclusion:
The
deceased was killed some time between 21h00 on the 2
nd
December 2001 and 08h30 on the 3
rd
December 2001. One of
the Security Guards, Ntshuba, saw her driving her car between 18h00
and 19h00 on Sunday the 2
nd
December 2001 and she did not
meet her appointment on Monday the 3
rd
December 2001 at
08h30 to have her car serviced. Prof. Knobel could not with any
accuracy determine the time of her death other
than to say it must
have been thirty-six (36) hours or more prior to his initial
examination at about 20h00 on the 3
rd
December 2001.
Rigor mortis had disappeared completely, there was marbling of the
skin and there were early changes of decomposition
and antolysis of
the internal organs.
The
cause of death was manual strangulation and the consequences thereof
where considerable force had been used. Prof. Knobel said
the
classic signs of manual strangulation were fractures of the hyoid
bone; haemorrhages and contusions in the deep muscles of
the neck;
subconjuctival haemorrhage of the eye with petechial haemorrhages in
the eye. The fact that both horns of the hyoid bone
and that both
upper horns of the thyroid cartilage had also been fractured was
unusual and indicated the use of considerable force.
The
deceased was robbed of her cellular telephone; two torches; a
wristwatch and cash. As far as the cash is concerned no specific
amount can be determined. The accused had R300 in his possession
from which he paid the taxi to Blouberg R150; the taxi to
Khayelitsha
R300; gave Botyo R50 and sent his mother R650, all
without drawing more cash from his own account.
Access
to Mrs de Klerk’s apartment must have been obtained through the
door on the balcony. No signs of breaking in were found
and the
front door of the apartment was locked. Mrs de Klerk was known to be
very security conscious and while a door to the balcony
may have
been unlocked, it is inconceivable that it would have been open.
The
Court cannot find without reasonable doubt that the deceased was
raped.
Conclusion
169.
The accused went to the Dolphin Beach Complex after 21h00 on the 2
nd
December 2001 when he left Botyo at the Total Garage. He left the
complex at approximately 00h30 when he was seen walking away in
the
direction of Blouberg. He should in any event not have been at the
complex as he was not on duty.
170.
At 23h50 on the 2
nd
December 2001 the accused was in Mrs
de Klerk’s apartment from where he made the first telephone call to
Kem asking for the loan
of his car. At 00h16 on the 3
rd
December 2001 another call was made to Kem at the reception desk (see
the evidence of Visagie, the Telkom expert).
171.
On the Monday morning (03
rd
December 2001) he returned
home at about 02h30 and was in possession of cash which he counted
out after having paid the two taxis
a total amount of R450. He had
drawn an amount of R300 earlier and had sufficient cash in his
possession to send R650 to his mother
later that Monday and to give
Botyo R50.
172.
He also had in his possession Mrs de Klerk’s cellular telephone;
her wristwatch and a torch. These items were satisfactorily
identified as being the property of Mrs de Klerk. The cellular
telephone and watch were hidden by Victoria at his request. When on
Wednesday the 5
th
December 2001 it became apparent that
the accused was a suspect in connection with the murder Victoria gave
the items to Sam Mehlwana
who later gave them to the Police. The
torch was found in a jacket in his room.
173.
The only conclusion that can be drawn from the evidence before this
Court is that the accused was the perpetrator of the crimes
that were
committed. Defence counsel attempted throughout the trial to show
that another person or other persons may have been involved
in the
commission of the crimes, but from the evidence before the Court, no
such finding can be made.
174.
In addition to this evidence linking the accused to the crimes there
was a detailed statement made by the accused to the magistrate
in
which he admitted his participation in the commission of the alleged
crimes, except that of rape. This statement contains details
which
could only be known to someone who was at the scene at the time of
the commission of the crimes in question. Many of such details
were
corroborated by evidence of various State witnesses. Although the
so-called confession by the accused certainly confirms his
involvement in the commission of the crimes, the Court did
not
find it to be the deciding factor in reaching its conclusion that the
accused is guilty of the following crimes:
Count 1 – Murder
Count 3 – Robbery (with aggravating circumstances
as defined in
section 1
of the
Criminal Procedure Act 51 of 1977
)
Count 4 – Housebreaking with intent to commit a
crime unknown to the State
The
accused is acquitted on count 2, that of Rape.
175.
This is a unanimous finding of the Court.
Hlophe,
JP
60