S v Kalmeyer (CC44/2020) [2024] ZAWCHC 308 (28 February 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy



IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NUMBER: CC44/2020

In the matter between:

THE STATE

and

DERICK KALMEYER


JUDGMENT DELIVERED I.R.O CONVICTION
ON 28 FEBRUARY 2024
___________________________________________________________________
ANDREWS AJ

Introduction

[1] Mr. Derrick Kalmey er (“the accused”) is arraigned on two counts of
attempted murder read with Section 94 and 266 of the Criminal Procedure Act, No.
51 of 1977 (“the CPA”) ; two coun ts of murder read with the provisions of Section

51(1) and 51(2) read with Schedule 2. Part I and Part II of the Criminal Law
Amendment Act, No. 105 of 1977, a s amended and one count of contravening
Section 67(1)(a) read with Section 1 of the South African Police Service Act 68 of
1995, to wit, resisting arrest. It is alleged that the respective murders were planned
or premeditated. The accused elected to dispense with the use of assessors.

Factual Background

[2] The accused, was in a relationship with Ms F […] A[…] (“Ms A[…]”). They,
together with Ms A […]’ two children, F[...] W[…] A[…] (“F[...]”) who was about three
years old at the time and C[...] A[…] (“C[...]”), who was 18 months’ old, resided in a
separate entrance (“the Wendy House”), on the pro perty situated at 6 […] H[…]
Street, Vredenburg, belonging to the accuseds’ sister, Mrs Maria Fieni s (“Mrs
Fienis”). Mrs Fienis, lived in the main house with her husband Riaan Fienis and their
two children.

[3] On the evening of 1 May 2019, the accused arrived at the Wendy House .
Present in the house were Ms A[...], her children, F[...] and C[...]; her friend, C[...]
O[...] (“Ms O[...]”) and her child B[...]. An argument ensued between the accused and
Ms O[...]. Ms A[...] intervened. Mrs Fienis heard the commotion and upon entering
the Wendy House , observed that the accused was holding Ms A[...] by her collar .
The accused released his hold and Ms A[...] ran out of the Wendy House to the main
house. Ms O[...] also ran out, but returned to fetch her daughter, B[...] and then also
sought refuge in the bedroom of the main house.

[4] Later, C[...] was seemingly propelled through the window of the main house
and landed on the floor. The police were summoned. At some point the accused left
the premises. The lifeless body of F[...] was discovered in the Wendy House. C[...]
was taken to hospital but succumbed to his injuries. The accused, who later returned
to the Wendy House was apprehended and charged for the murders of F[...] and
C[...] and the attempted murders of Ms A[...] and Ms O[...].

The Plea

[5] The accused pleaded not guilty to counts 1 – 5 and elected to exercise his
right to remain silent. He tendered no plea explanation in terms of Section 115 of the
Criminal Procedure Act 51 of 1977 (“CPA”).

Admissions

[6] The following admissions were made in terms of Section 220 of the CPA:

(a) That the deceased, F[...] W[…] A[...], a minor child, was at all material
times correctly identified as F[...] W[…] A[...] and marked WC 15/0054/19,
being the person mentioned in the indictment;

(b) F[...] W[…] A[...] was born on 25 November 2015;

(c) That the deceased, C[...] A[...], a minor child, was at all material times
correctly identified as C[...] A[...] and marked WC15/0055/19, being the
person mentioned in the indictment;

(d) C[...] A[...] was born on 20 October 2017;

(e) The biological mother of F[...] W[…] A[...] and C[...] A[...] was F […]
A[…] C[…] A[...];

(f) F[...] W[…] A[...] and marked WC15/0054/19, was decla red dead on 1
May 2019 at 03h44;

(g) C[...] A[...] and marked WC15/0055/19 was decla red dead on 1 May
2019 at 04h25;

(h) The notes, facts and findings noted in the affidavit by Anunchia Lynn
Kotze “Kotze” in Exhibit B, dated 16 May 2019 are true and correct;

(i) The notes, facts and findings noted in the “Key to Photos” attached to
the affidavit of Kotze dated 14 May 2019 are true and correct;

(j) The photo album, photographs 1 to 69, taken by Kotze on 1 May 2019
correctly depicts the crime scene and the bodies o f F[...] W[…] A[...] and C[...]
A[...];

(k) The notes, facts and findings noted in the affidavit by Kotze dated 7
May 2019 are true and correct;

(l) That the accused was arrested on 1 May 2019 by Harchell Anthony
Petre Fortui n who is employed by the Sout h African Police Service and
stationed at Vredenburg Police Station;

(m) That the accused had drafted and forwarded a letter to the mother of
F[…] A[…] C[…] A[...] dated 22 June 2019 and

(n) The accused admitted the content of the letter marked Exhibit C.

[7] The accused confirmed that admissions were read to him and interpreted in
Afrikaans; that he understood the aforementioned admissions, and made the said
admissions freely, voluntarily and in his sober senses.

Burden of proof

[8] In S v Chabalala ,1 the Supreme Court of Appeal held that in evaluating
evidence before court the correct approach is to weigh up all the elements which
points towards the guilt of the accused against all those which are indicative of his
innocence, taking proper account of inherent strengths and weaknesses,
probabilities and improbabilities on both sides and, having done so, to decide
whether the balance weighs so heavily in favour of the State as to exclude any
reasonable doubt to the accused’s guilt.


1 2003 (1) SACR 134 at 140 A-B, see also S v Van der Meyden 1991 (1) SA SACR 447 (W) at 448.
[9] In S v Shackell,2 the Supreme Court of Appeal per Harms AJA, as he then
was, held that a court does not have to be convinced that every detail of an
accused’s version is true. If the accused’s version is reasonably possibly true in
substance the court must decide the matter on the acceptance of that version. Of
course it is permissible to test the accused’s version against the inherent
probabilities. But it cannot be rejected merely because it is improbable; it can only be
rejected on the b asis of inherent probabilities if it can be said to be so improbable
that it cannot be reasonably possibly be true.

The evidence

[10] The state led the evidence of 12 witnesses namely: F […] A[…] A[...];
Constable Edwin Kobe; Doctor Nadene Louise Scherman; C[...] O[...]; Maria Fienis;
Sergeant Marshall Fortuin; Sergeant Mzamo Mbowane; Sergeant Ronaldo Joubert;
Denise Thompson; Ethan Leroy Daniels; Lyndon Julies and Marsha Williams, in
respect of the tria l-within-a-trial, in te rms of Section 190(2) of Act 51 of 1977 , which
application was ultimately not persisted by the state.

[11] Only the accused testified in the defence case after the application in terms
of Section 174 of Act 51 of 1977 was refus ed. The court recalled the investigating
officer in terms of Section 186 of Act 51 of 1977.

Summary of the evidence for the State

[12] F[…] A[…] C[…] A[...] (“Ms A[...]”), testified that she knows the accused
before court. She was in a relationship wit h him and stayed with him in a W endy-
House with her two children, F[...], aged 3 years and C[...] who was a year and six
months old . The Wendy H ouse is situated in the yard o f the property of the
accused’s sister, who stays in the main house.

[13] Ms A[...] testified that she was in the W endy-house on the bed with her two
children. Her friend, C[...] O[...] (“Ms O[...]”) was sitting at the foot end of the be d.

2 2001(4) All SA 279 (SCA).
She was changing her son’s nappy . When she looked up she saw the accused with
a crowbar in his hand. The accused uttered words to the effect that he just feels like
he can kill her, F[...] and C[...]. Ms A[...] explained that she became scared. She got
the impression that the accused wanted to assault them. Ms O[...] jumped up and
when she was done changi ng the nappy she too jumped up. They were trying to
wrestle the accused until they reached the door. As they reached the door, the sister
of the accused, Mrs Fienis, arrived. She pulled Ms A[...] out of the house and took
her to the main house where she an d her husband hid her in the cupboard. Ms A[...]
explicated that Ms O[...] followed behind her shortly. She indicated that she was in
the cupboard for about two hours. The children were left behind in the Wendy-House
with the accused.

[14] While she was in the cupboard, she heard crying, then she heard the lounge
window’s glass breaking . That was when the accused , according to her, threw her
18-month-old son, C[...] through the closed window. S he narrated that she heard
C[...] crying. Ms A[...] stated that she tried to get out of the cupboard to check why
here children were crying. The accused’s sister and her husband did not want her to
leave the room. She explained that she eventually did not hear F[...] crying in the
background anymore.

[15] Ms A[...] orated that she telephoned her mother to request her to come to the
house because the accused had thrown the child through the closed window. Ms
A[...] orated that the police arrived on the scene and did not want her to leave the
house. She noticed C[...] lying next to her crying. C[...] was injured. She described
that he was on all fou rs, knees and hands. Ms A[...] observed that there was blood
on his T-shirt, but did not think it was serious. C[...] was then taken by ambulance to
the hospital where he passed away.

[16] F[...] was still in the Wend y-House. Later the accused’s sister came into the
main house with F[...] who was already deceased. According to Ms A[...], F[...] was
stabbed 17 times . She stated that she did not speak to the accused again after the
incident, except for receiving the letter marked “Exhibit C” which was delivered to her
via her mother.

[17] Much of the accused’s version , preceding was confirmed by Ms A[...] during
cross-examination, save that she denied the accused’s version that the crowbar
would not be kept in the house, but in the garage, reiterating that the crowbar was
hanging behind the door. She refuted the version that the accused went to speak to
Derek in the c ar to tell him that C[...] no longer wanted to go with him. Ms A[...]
stated that the accused is lying about him knocking on the door of the main house to
inform Riaan, the husband of his sister that he would be leaving. Ms A[...] conceded
that she could not have observed anything whilst she was in the cupboard and could
only hear what was happening. She confirmed that she did not know what happened
in her house. She was unable to comment on the accused’ s version as to what he
says he did after informing Riaan Fienis that he was leaving. Much of the rest of the
accused version she answered by stating she had no knowledge of the veracity
thereof as she had left to go to the hospital.

[18] Ms A[...] confirmed that the accused loved the children but on the night of the
incident he told her that he will hurt C[...] and F[...] and kill her. She confirmed that
when she, C[...] and the accused were struggling with the crowbar, that the accused
did not strik e any of them. Ms A[...] refuted the suggestion that it could have been
someone else who harmed the children during the time when he left.

[19] Constable Edwin Kobe (hereinafter referred to as Constable Kobe) ,
narrated that on 1 May 2019 at approximately 2:30am, he received a call about a
complaint of a fight in H[…] Street. He proceeded to the address, where he passed a
male walking, but did not take much notice of t he person. When they stopped at the
premises they were met by Maria Fielies who indicated that they must come into the
house immediately because there is something wrong. Upon enquiring, she informed
him that her brother, the accused before court, threw th e baby through the window.
He articulated that he observed the broken window and bloo d and a boy lying on his
stomach with his face down.

[20] Constable Kobe explained that he checked for signs of life and discovered
that the child was still alive. He immediately summoned, through radio control, for an
ambulance. He further orated that he was approached by another lady who also
appeared anxious and screamed that she was the mother, F […] and that he had to
check on the daughter. As they were in the pr ocess o f accompanying her, Maria
Fienis came in carrying the daughter. He observed that t he child’s clothes were full
of blood. Mrs Fienis put the child down next to the boy. Constable Kobe explained
that he checked for signs of life but couldn’t find any. He then contacted the radio
room to send in pathology, LCRC, detectives and others to the crime scene. Whilst
waiting for the ambulance to arrive, Maria Fienis took him to show him the place
where she found the daughter. He established that it was where her brother, the
accused was residing with Ms A[...] and the children. Constable Kobe testified that
he noticed a blanket covered in blood and a knife under the pillow.

[21] He orated that he then went back into the main house. T he paramedics
arrived and declared the daughter dead at the scene. The boy was transported to
hospital by ambulance. He explained that when they picke d him up he was gasping
for air; the child, as he described it, was struggling. Constable Kobe observed that
the daughter had multiple stab wounds on her body and when they started working
with th e baby they realised he was also stabbed multiple times. Thereafter,
Constable Kobe went to the Provincial Hospital where Dr Jafthas was still working on
the boy. A few minutes later Dr Jafthas came out and informed them that the boy did
not make it. Constable Kobe then went to the Police S tation after the boy was taken
by pathology.

[22] During cross -examination Constable Kobe was challenged about him not
testifying during his evidence in chief that the person that was arrested was the
same person th at they drove past when they were en route to the crime scene.
Constable Kobe stated that he testified what he wrote in his statement. He conceded
that he could have attested to a supplementary affidavit but did not consider it
because he lacked experience and had no guidance. He refuted that his evidence in
this regard is an afterth ought. Constable Kobe expressed that seeing those two
children on the floor at the scene traumatised him. Constable Kobe conceded that
he did not mention it in his statement.

[23] It was put to Constable Kobe that the accused will deny that he walked past
any police vehicle. He also strongly refuted the suggestion that he manufactured the
evidence to secure a conviction because of the trauma he suffered that evening.

[24] Doctor Nadene Louise Scherman (“Dr Scherman”), the principal Medical
Officer in Forensic Pathology Services, Malmesbury, testified that she conducted a
post-mortem examination on the body of a female child on 2 May 2019 under death
register number WC/15/0054 /2019. Dr Scherman read her chief post -mortem
medical findings into the record and described the appearance of the body and
conditions of the limbs.

[25] She testified that the main cause of death was penetrating incised wounds
on the right chest, an terior, lateral and posterior with hypovolemic shock. She
identified the wounds that were the likely cause of death and those that would have
contributed to the cause of death. Dr Scherman orated that the body sustained 19
incised wounds of which some were penetrating. She opined that t he blood loss of
the incised wounds would have contributed to the cause of death.

[26] According to Dr Scherman, the 11 wounds on the right arm could have been
defensive wounds. All the wounds were caused by sharp force trauma inflicted by a
knife or any sharp object. The deceased received no medical treatment and was
declared dead on the scene.

[27] Dr Scherman further stated that she also conducted a post -mortem
examination on the body of a male child on 2 May 2019 under death register number
WC/15/0055/2019. Dr Scherman read her chief post -mortem medical findings into
the record and described the appearance of the body and conditions of the limbs.

[28] She explained that there was prior medical intervention as most of the
wounds were sutured already. She testified that the body sustained 14 wounds. The
cause of death were multip le penetrating incised wounds with consequences. In her
opinion, all the wounds could have contributed to the ultimate death of the deceased.
There were 5 defensive wound s on the left arm. She explicated that 13 of the
wounds were sharp force trauma and 1 was caused by blunt force trauma to the
head.

[29] Dr Scherman explained that it was very upsetting to examine the two bodies
of 2 young children and opined that whoever is responsible for their death “It was
overkill”. A 2 -year-old child and an 18 -month-old baby could not have defended
themselves.

[30] C[...] O[...] (“Ms O[...]”), testified that she stayed in H[…] Street at the time of
the incident on 1 May 2019. She confirmed that she knows the accused, whom she
met as he was her boyfriend Bronwyn Fortuin’s friend. She explained that she
became friends with Ms A[...]. She described the events leading up to the inc ident.
She stated that a fter dropping off the SASSA money that Ms A[...] went to draw at
her mother’s house, Derick Oosthun, dropped her and Ms A[...] at the accused’s
house. They went into the house and then too k a walk to buy drugs from Derek
Oosthun’s brother and returned to the Wendy House, that is situated on the property
of the accused’s sister’s house. She explained that they smoked the drugs when
Derick Oosthun came in accompanied by another gentleman. Derick Oosthun
wanted her to go with h im to have sex and she refused and Derek Oosthun left. She
and Ms A[...] fell asleep and was woken up by a knock at the door. Ms O[...]
explained that she opened the door. I t was the accused and Derick Oosthun who
entered the house. Derick Oosthun again said to her that he wanted to be with her.

[31] She explained that the two Dericks ’ sat a little while and drank beer
whereafter they left. She further narrated that she wanted to close the door that was
open and saw the accused who was standing outside the door, looking at her. She
walked away from the door and the accused came inside and closed the door behind
him. Ms O[...] explained that she went into the room and the accused came in with
an iron object in hi s hand . According to Ms O[...], the accused said he will “slaan
onse koppe p ap”. He gestured “gemik” with the iron object when he uttered the
words. Ms A[...] had her daughter behind her, stood up and accused hit Ms A[...]
with the iron against her head. Ms O[...] testified that she tried to take the iron away.
The accused then left the iron and then took the beer bottle and hit C[...] against the
head with the beer bottle. Ms O[...] explained that she held the accused so that Ms
A[...] could get out. They shouted for help and Maria Fienis, the accused’s sister
kicked the door open. Ms A[...] managed to run out. She explained that Ms A[...] ran
into the main house. The accused went back into the room of the Wendy House.

[32] Ms O[...] explained that she stood at the door of the Wendy H ouse and went
back to fetch her own daughter. C[...] was lying on the floor by the door. Ms O[...] ran
to the main house. She further orated that Ms A[...] hid in the cupboard and she hid
on the cupboard next to the cupboard where Ms A[...] was hiding.

[33] Mr O[...] further explicated that the accused knocked on the door. Maria
opened the door and he asked Maria where Ms A[...] was. She told him that Ms A[...]
was not there and then the accused left. Thereafter C[...] came through the window
“soos een wat hom deur die venster gegooi het”.

[34] According to Ms O[...], Mrs Fienis was standing in the living room and
shouted “No Derick No!!”. C[...] was lying on the ground. He was crying and full of
blood. She explained that she and Ms A[...] then came out of the room. Ms A[...]
collapsed. When the police arrived, Mrs Fienis took the police officer to go and look
how her brother stabbed the children. She explained that Mrs Fienis proceeded to
the Wendy House and brought F[...] back with her.

[35] During cross-examination Ms O[...] remained steadfast that the accused hit
C[...] with the beer bottle . Ms O[...] denied that the acc used told her that Dereck
Oosthun was on his way as per their prior arrangement. She denied the version put
to her that an argument ensued because she made h im look bad in front of his
colleagues. Ms O[...] remained steadfast that the accused hit Ms A[...] despite the
denial of this by Ms A[...] as was put to her. According to Ms O[...], she heard that the
accused was at the Plakkerskamp. Ms O[...] was steadfast that the accused was in
the Plakkerskamp and not Hopland because Linda’s house is in the Plakkerskamp.
Ms O[...] disputed the proposition that it was someone else that murdered t he
children, and reiterated that it was the accused who did it.

[36] Maria Magdalene Fienis (“Mrs Fienis”), the sister of the accused confirmed
that the accused was residing with her at 6 […] H[…] Street. She explained that on 1
May 2019, she woke up at 02:10am in the morning because she heard screaming
“gil”. She explained that she went to the yard to the accused’s shack. She tried
pushing the door and could not open it, so she kicked the door open. She observed
Ms O[...] with the child on her hip. She demonstrated how the accused was holding
Ms A[...] on her clothing at the back of her neck. The accused then let go of Ms A[...]
and both Ms A[...] and Ms O[...] then ran past her. Mrs Fienis orated that she ran
after them and closed the door of the kitchen to the main house. When she got into
the house, they were already in the main bedroom. Ms O[...] was next to the
wardrobe trying to get on top of it with her child and Ms A[...] was inside the
wardrobe. Mrs Fienis explained that she first called Ms A[...]’ mother to tell them that
they must come as there is big trouble happening. Thereafter she called the police.
She further explicated that while she was on the phone with the pol ice she just saw
C[...] coming through the closed glass of the window. C[...] fell on the tiled floor in the
living room. She told her husband that they could not touch him they should wait for
the police to arrive.

[37] Ms A[...] asked about her da ughter F[...]. According to Mrs Fienis, she told
Ms A[...] that they should also wait for the police to arrive because she does not
know who else is there at the back. She testified that when the police arrived, she
went out to them. She told them they ha d to accompany her. The police officer
followed her. They went to the back. She went inside the accused’s house and the
police officer remained at the door. She saw F[...] lying on the bed. She thought that
F[...] was sleeping. Mrs Fienis stated that she picked F[...] up and saw there was
blood on the front of her T-shirt. The police officer said she must take F[...] inside the
house. The policeman followed her into the house, where she lay the child on the
tiled floor. At that time, the a mbulance was already there. There was no cross -
examination of this witness.

[38] Sergeant Marchell Anthony Petré Fortuin (“Sgt Fortuin”), testified that he
was on duty, on 1 May 2019 doing crime prevention. He was dressed in full police
uniform. Whilst in the charge office, family members of the deceased arrived. They
were hysterical and reported that the person who committed the murders had
returned home.

[39] Sgt Fortuin explicated that he proceeded to the house where the murder
happened and encountered members of the community on the property moving
towards the back of the house. He stated that they wanted to break into the shack.
He spoke to the people to get them off the property so th at he could personally go to
what he referred to as the shack. Sgt Fortuin explained that he felt the door and
noticed that someone was pushing the door closed from the inside . He testified that
he pushed hard and a lso used his shoulder to try and get the door open. He then
tried to squeeze through the opening and when he managed to get his head through
he could see an object being flung towards his head. He then stepped back and ran
toward the door and forced the do or open which cause the person who was behind
the door to fall over and move away from the door. Sgt Fortuin further explained that
when he got inside the shack he recognised the person as Derick Kalme yer, also
known as “Slang”. He further orated that they grabbed onto each with as the
accused was trying to get away an d he was trying to arrest him. T hey struggled until
he was able to get him off balance which caused the accused to fall thereby creating
an opportunity for him to effect the arrest. The accused was then placed in handcuffs
whereafter his rights were explained to him. I n order to secure safe passage to the
police vehicle, the community members had to be requested to allow him to escort
the accused unhindered. The accused was take n to the police station and handed
over to the detectives for further processing.

[40] During cross-examination, it came to light that Sgt Fortuin could not dispute
that there may have been community member(s) with firearms as he did not look at
everyone on the premises. He could also not refute that the accused claimed to be
afraid when he overheard threats being made that they would shoot him. Sgt Fortuin
could not dispute that the accused claimed that he did not know that it was the police
who was trying to open the door. He conceded that he did not announce himself as a
police officer when they arrived. He explained during re -examination, that there was
so much chaos as there were people who were attempting to break into the shack
with the intention to hurt the accused. Sgt Fortuin testified that it was his obligation to
ensure the safety of the accused.

[41] Sgt Fortuin confirmed that the police sprayed pepper spray into the sha ck.
According to Sgt Fortuin reason pepper spray was used was so that they could get
him away from the door. Sgt Fortuin denied that his firearm was drawn. According to
him, his firearm was in the holster the entire time. Sgt Fortuin reiterated that he saw
the object when he put his head through the opening and when he entered he saw
the metal pole, that he described as being as long as his forearm and hollow inside,
was lying at the door. Sgt Fortuin was confronted about why he did not describe the
metal pole in his evidence in chief and why he did not mention seeing t he pole lying
on the ground when he entered the shack. Sgt Fortuin explained that it slipped his
mind to mention it and that it is human to forget. Sgt Fortuin reiterated that there was
a struggle when it was put to him that the accused will deny tha t he a ttempted to
resist arrest. It was put to Sgt Fortuin that the accused was suffering from the effects
of the pepper spray and as such would not have been able to wrestle with Sgt
Fortuin.

[42] In re-examination Sgt Fortuin reaffirmed that the accused put up a fight with
him before he was able to place him under arrest.

[43] Bamanye Mzamo Mbovane (“Sgt Mbovane”), explained that on 1 May 2019
he was on standby when he was called to at tend at a murder scene in H […] Street.
He was accompanied by Sgt Joubert. He narrated that when they arrived they were
shown the body of a child lying in the sitting room. They were informed that there
was another child who was already taken to the hospital. They proceeded to the
hospital.

[44] Whilst on their way back to the scene they were informed via radio that the
suspect was at the house. W hen they arrived they encountered a lot of community
members standing outside the shack at the back of the property. There were also
other police officers present. Sgt Mbovane explicated that they tried to open the door
but there was a person behind the door. They had to use force to open the door. He
explained further that the person was looking at them through a little window in the
door. After they managed to force open the door, the accused was taken into
custody and escorted to the vehicle. He explained that he was not in uniform, but
was driving a marked vehicle.

[45] During cross -examination he confirmed that the scene was chaotic . It was
put that the accused confirms that there was a struggle at the door. It was put that
the accused will deny that he looked through the small glass. Sgt Mbovane remained
steadfast that he d id. He also confirmed that Sgt Fortuin was with him and woul d
have seen the accused looking through the small glass.

[46] Ronald Joubert (“Sgt Joubert”), testified that he is stationed at Vredenburg
SAPS and has 16 years’ service. He placed on record that he holds the rank of
Sergeant and works in the detectives’ unit. Sgt Joubert testified that he was on duty
on 1 May 2019 with Sgt Mbovane. They were called to a murder scene. He
explained that they attended at Vredenburg Hospital where one of the victims were
admitted. They were on their way to the house when they received a call that the
suspect was there. On their arrival there were community members on the property.
The community members were trying to force the door of the shack open. Sgt
Fortuin also arrived on the scene. Sgt Joubert explicated that while they were trying
to get the door open, he was controlling the cr owds. Sgt Fortuin and Sgt Mbovane
managed to get the suspect under control and placed him under arrest. There was
no cross-examination of this witness.

[47] Denise Verna Thompson (“Ms Thompson ”) the Emergency Practitioner,
testified that on the 1 May 2019, she was on duty. She and her colleague was
dispatched to attend at H[…] Street. She narrated that upon their arrival, she noticed
police vehicles and community members at the house. She went i nto the house and
her colleague remained in the ambulance. As she arrived she noticed the broken
window and upon entering she notice a baby and a girl lying down on the floor. The
boy was lying closer to the door. He was wearing a nappy. She observed that there
was blood on his back. He was not moving at the time. She assessed the situation
and focussed on the girl first; felt for a pulse and discovered that t here was no pulse.
Then she checked if the girl was breathing and noticed that she was not breathin g.
The girl was cold to touch, which in her opinion meant that she was deceased for
maybe an hour already.

[48] Thereafter she turned her focus on the little boy who was lying on his
stomach. There was a lot of glass lying in the vicinity where he wa s. When she
checked if the boy was breathing, he moved like he wanted to stand up in a crawling
position. Ms Thompson further orate d that she took the boy and ran to the
ambulance with him. She handed the boy to her colleague who was already at the
back o f the ambulance to administer patient care. The boy was placed on the
stretcher and given oxygen. Ms Thompson rushed to Vredenburg Hospital where
she handed the baby over to Dr Jaftha who was already waiting. She briefed Dr
Jaftha that the child was thrown through the window. She also observed multiple
stab wounds.

[49] Ms Thompson then left to go back to the scene, filled out the declaration of
death and handed the body of the girl to forensics. She testified that she then
returned to the hospital wh ere she established that the boy had since also passed
away. She stated that she reported to her manager that they were too traumatised to
continue working and counselling was provided for them.

[50] During cross -examination, the age discrepancy was clarified. According to
Ms Thompson, she only went on what she was told. The boy looked to be between
the ages of 7 to 9 months old as he was wearing a nappy. She stated that she did
not count the wounds immediately. Only did so later. She conceded that the head
wound on the boy could have been caused by him being thrown through the glass.

[51] Ethan Leroy Daniels (“Mr Daniels ”), stated that he works for Forensic
Pathology Services in Vredenburg. He ex plicated that on 1 May 2019, he received a
call from Vredenburg SAPS to collect a body from 6 […] H[…] Street, Vredenburg. Mr
Daniels explained that he attended the call and conducted crime scene investigation
which entails taking photographs of the body, t he position, entrance and exits of the
house. He stated that there was one body in the house of an infant female. He
orated that as he was loading the body into the vehicle, he received a call from a
police official informing him that there was another body at the Vredenburg Hospital.

[52] Mr Daniels further explained that he went to Vredenburg Hospital to collect
the body of an infant boy. He explained that he tagged the girl’s body with serial
number WC 15/0054/19 and the boy’s body with serial number WC 15/0055/19 at
their facilities. He explained that he checked to see whether the bodies sustained
any further injuries from the time of collection to the time when the body(ies) arrive at
the facility. He described that the bodies were naked. The boy was wrapped in sheet
from the hospital. After taggi ng and checking the bodies were placed in refrigeration
for safekeeping. He was informed by Dr Scherman that she would be conducting the
post mortem examination the following day, namely 2 May 2019.

[53] Mr Daniels explained that he removed the bodi es with the references
provided, from the fridge and presented the unwashed bodies to the doctor who then
conducted the post mortem. After the post mortem, he cleaned the bodies and made
sure that the bodies did not sustain any further injuries while the b odies were in his
possession. The bodies were then placed back into storage for safekeeping.

[54] During cross -examination Mr Daniels explained at what stages bodies are
checked to ensure that no further injuries were sustained. Initially this is che cked
against the injuries as photographed on the scene. When he gets to the facility he
checks to see that no new markings are on the body before he puts it into
refrigeration.

[55] Mr Daniels further explicated that the ages recorded would be as it is given
to him, which remains unverified at that stage. Although he referred to the bodies
being infants he confirmed that it wasn’t a baby. He indicated that both bodies
presented with multiple stab wounds. He also confirmed that there was a lot of blood
present at the crime scene and that anyone who would pick up the body would have
transfer blood. Mr Daniels stated that it is for that reason that they bag bodies on the
scene.

[56] Lyndon Julies (hereinafter referred to as Mr Julies), testified that he works
as a facilities manager at Vredenburg Forensics. He explained that on 6 May 2019,
he did the identification of the bodies of 2 deceased bodies bearing ser ial numbers
WC 15/0054/19 and WC 15/0055/19, respectively. He explained that he removed the
bodies from the fridge and presented them to the mother upon showing him proof of
identification of the bodies. He then completed the information on the system. After
verification, the bodies were place d back into the fridge. He confirmed that while the
bodies were in his possess, no further injuries were sustained.

[57] The State’s case was thereafter closed whereafter, the Defence applied for a
Section 174 discharged that was refused.

[58] The accused was called to give evidence in the defence case. Derick
Kalmeyer (“the accused”) testified that he is 54 years old and is the father of 2 adult
children aged 29 years and 33 years old respectively. At the time of his arrest he
was employed as a labourer for AB Van Heerden Constr uction earning R2000 every
fortnight. He narrated that he was residing with his sister, Maria Fienis at 6 […] H[…]
Street. The accused explained that he resided in what he referred to as a shack on
the property in the backyard. He described the shack as comprising of a kitchen and
a bedroom. His sister, resided in the main house with her husband, Riaan Fienis and
their two children.

[59] The accused explained that he met F […] A[...] through her father, F[…] A[...]
when he was around 14 / 15 years old. According to the accused, he and Ms A[...]
were in a love relationship for approximately 5 months prior to the i ncident. He
explained the nature of his relationship with Ms A[...], and how it came about that she
and her two youngest children moved in with him. The accused also explained how
he met Ms O[...]. According to the accused , when he was introduced to Ms O[...],
Bronwyn was engaged to her. They had a daughter together “B[...]”. At that stage he
knew Ms O[...] for approximately 3 months.

[60] The accused explained h is connection with Derick Oosthun , who was his
foreman; they worked together at the building construc tion and would meet up at
times for beers after work. Prior to working together, he knew Derick Oosthun by
sight. The accus ed explicated that Derick Oosthun lives in H […] Street
approximately 400 m away. The accus ed explained that Derick Oosthun’ s brother
lives on the premises in the yard with him. He sells drugs and other goods. The
accused also explained his relationship with one Boeta Bywa s and his connection
with Linda whom he regularly visited in George Carriage where the RDP houses are
built.

[61] The accused explained that he went to work the previous day of the incident
and got home at ar ound 6pm. At work, Derick Oosthun and Boeta Bywas informed
him that they would be buying a case of beer and that they would fetch him from his
place of residence just before 7pm later that day . They arrived to fetch him as
planned. They then went to Derick Oosthun’s house where they ate, drank beer and
listened to music. Ms A[...] and Ms O[...] arrived there just before 8pm. He explained
that they went to the back to Derick Oosthun’s brother’s place, presumably to by TIK.
Thereafter they danced to the mu sic and then asked Derick Oosthun to t ake them to
the ATM to draw the child support grant money. They went back to the house where
the accused and Derick Oosthun fetched them and the children, whereafter t hey
went to withdraw the money, paid Derick Oosthun R100 for petrol and then dropped
off money at Ms A[...]’ mother’s house in Hopland. On thei r way to Lovo, Ms O[...]
and Ms A[...] wanted to know where t hey could buy TIK. Derick Oosthun informed
them they could buy it from his brother. He then drove them there, where they
purchased TIK, whereafter he dropped them off again at the accused’s place.

[62] The accused further explained tha t they went back to Derick Oosthu n’s
house where they continued to drink. Derick Oosthun and Boeta Bywa then decided
to buy a bottle of brandy, which they purchased from a shebeen. According to the
accused, it became late. It was already in the early hours of the morning of the 1 st of
May 2019. Derick Oosthun drove the accused to his house. The accused explained
that he knocked on the door and Ms O[...] opened the door. He told Ms O[...] that
Derick Oosthun was waiting for her. According to the accused Derick Oosthun and
Ms O[...] had a date . Ms O[...] informed the accused that she was not interested to
go anymore. The accused orated that Derick Oosthun got very upset about it when
he told him whereupon the accused undertook to talk to Ms O[...] again. The
accused explicated that he informed Ms O[...] that Derick Oosthun was very angry
and asked him to speak to her.

[63] According to the accused, this is where the argument start ed. He told Ms
A[...] and Ms O[...] that they made him feel like a P…in front of his co-worker. He told
Ms A[...] not to interfere in other people’s business. He felt that Ms O[...] should have
informed Derick Oosthun herself that she was no longer interested to go with him.
He stated that the nature of the argument was only an exchange of words. He told
Ms A[...] that she mu st stop meddling in other people’s busin ess as it was not her
business. The accused explained that t hey spoke loud ly. He testified that the P…
word was the only swear word that he used while arg uing. His sister must have
heard because she arrived a minute or two after the commencement of the
argument. The accused explained that Mrs Fienis pushed the door open. At that
time, he was holding Ms A[...] by her collar at the nape of her neck. When he saw
his sister he let go of Ms A[...].

[64] Ms A[...] then left, followed by Ms O[...], who returned after a couple of
seconds to fetch her daughter B[...]. Mrs Fienis also left. The accused stated that he
stood in front of the shack for about 5 – 10 minutes, then went to knock on the door
of the main house where Riaan opened. He asked Riaan where Ms A[...] was and
Riaan informed him that she was not there. He said that he then told himself “I will
see where I can find her”. He walked out of the gate and dow n the road to Derick
Oosthun’s house who was not there because his car was not in the driveway.
Thereafter he went to Hopland to Linda’s house. The accused explained that he
went there to look for Bronwyn who told him to look for him at Linda’s house earli er
the previous evening. The accused stated that it took him about 30 to 35 minutes to
get to Linda’s house. when he arrived there he was informed that Bronwyn had left
earlier that evening to go to the squatter camp. The accused testified that he decided
not to go to the squatter camp because it was too dark and dangerous. He sat at
Linda’s house for a while and then decided to go back home.

[65] When he arrived home he did not notice anything as it was dark. No-one
was in the shack. He went inside, closed the door and then dozed off. He stated that
he was awoken by a “ge -brommery”, buzzing sound of people’s voices and one
person telling another, “Give me the firearm let me shoot him ”. This is when he got
up and went to the door to mak e sure that the door was closed because h e didn’t
want them to break the door down.

[66] According to the accused they attempted to break down the door but they
could not. It got quiet after a while. Teargas was thrown into the shack which caused
him to release the door. The policeman then pushed open the door and told him to
“hands up”. The policeman had a firearm in his hand. According to the accused, he
did not resist, was handcuffed and then take n to the police vehicle, whereafter he
was taken to the Police Station.

[67] He explained that at Saldanha Bay Police S tation a lady C aptain took wha t
he was wearing and placed it into separate evidence bags. He does not know what
became of the clothes. He testified that they also took photographs of these clothing
items namely his top, jeans and takkies.

[68] He testified that the crowbar is kept in the garage. He denied threatening Ms
A[...] with the crowbar and or Ms O[...] with an iron tool used for scraping coals. He
explained that he does not own such a tool as they make fire in a 25L drum.

[69] He denied hitting C[...] with a beer bottle. He denied wr estling with Ms A[...]
and admitted to only grabbing her by her collar. He stated he had no motive to kill
the children. He stated that he had no knowledge of Ms O[...]’s version that Mr
Oosthun came to the house with another man, presumably Boeta Bywa s, earlier that
evening. He explained that he was , what he referred to as being in a cold war with
Ms A[...]’s ex-boyfriend, Jonathan Bester.

[70] He denied attempting to hit the policeman wi th an iron pole at the time of his
arrest, stating that there is no such pole in his house. He denied looking through the
window of the door as the people were still “oproerig”. He denied wrestl ing with the
Police Officer. He denied saying that he feels like he can kill Ms A[...], F[...] and C[...].
He clarified that the children were in the bedroom when he was arguing with Ms A[...]
in the kitchen.

Section 186 of Act 51 of 1977

[71] During the course of preparing the judgment in this matter, it became
apparent that there was evidence of certain witnesses which will be essential to the
just decision of this case. The court invoked the provisions of Section 186 of Act 51
of 1977, which empowers the court to, at any stage of criminal proceedings,
subpoena or cause to be subpoenaed any person as a witness at such proceedings,
and the court shall so subpoena a witness or so cause a witness to be subpoenaed if
the evidence of such witness appears to the court essential to the just decision of the
case.

[72] The court emphasised that it has a legal duty to ensure that evidence is
placed before it for a just decision. After having assessed a ll the evidence placed
before the court, in the exercise of its wide discretionary powers, ordered , that the
interest of justice requires that the following witnesses be subpoenaed:

1. Derick Oosthun

2. Riaan Fienis and

3. Recall Sgt Mbovane to clarify whether the specimens collected at the
crime scene referenced in Exhibit “B” has been sent for analysis.

[73] The Investigating Officer, Sgt Mbovane was recalled. From his testimony it
became apparent that the knife, blood spatter collected from the wall next to the
window, grey hoody and accused ’s clothing were sent for analysis. It was
furthermore established that the results were handed to the Prosecutor in November
2023 as according to Sgt Mbovane, it took a long time because of the backlogs at
the laboratory. When asked whether the results wo uld have assisted the State’s
case his response was that he read the report but could not really understand what it
was saying.

[74] It further came to light that Sgt Mbovane interviewed all the witnesses
including Riaan Fienis, the brother- in – law of the accused. No statement was taken
from him as he emphatically stated that he wasn’t interested in being part of this.
According to the Sgt Mbovane, Derick Oosthun is deceased.

[75] In light of this evidence, the court being mindful of the imperative that strict
neutrality is to be maintained, after hearing the evidence of the investigating officer,
decided to not pursue the calling of Riaan Fienis, to protect its appearance of
impartiality and being mindful of the accused’s fair trial rights . The court wasn’t
persuaded that Riaan Fienis’ evidence would shed any additional light on the matter
especially as he was not willing to provide a statement to the police. This also
because of the recanted statement of Maria Fienis, which I will deal with later in this
judgment. Furthermore, i t goes without saying that the alleged demise of Derick
Oosthun has rendered the calling of him as a witness moot. The state had an
opportunity to present the DNA evidence and decided not to do so, neither was there
any address by the state in this regard. I will also deal with this later in my judgment.

Evidentiary material

[76] The following evidentiary material was admitted into evidence:

(a) The Section 220 admissions – Exhibit A;

(b) State evidence bundle – Exhibit B;

(c) Letter written by the accused – Exhibit C;

(d) Affidavit in terms of Section 212 – Dr Nadene -Louise Scherman –
Report on a Medico -Legal Post -Mortem Examination – Death Register
Number – WC/15/0054/2019 – Exhibit D1;

(e) Affidavit in terms of Section 212 – Dr Nadene -Louise Scherman –
Report on a Medico -Legal Post -Mortem Examination – Death Register
Number – WC/15/0055/2019 – Exhibit D2;

(f) Statement of Ms C[...] O[...] – Exhibit E and

(g) Statement of Mrs Maria Fienis – Exhibit F.

Submissions by the Parties

[77] The State and the Defence prepared written Heads of Argument , prior to the
invocation of Section 186 of Act 51 of 1977 by the court. The parties were invited to
make additional submissions and both the stated and defence counsel stood by their
written submissions as presented earlier.

Common cause

[78] The following salient facts are common cause that:

(a) the accused was in a relationship with Ms A[...];

(b) Ms A[…] and her two children, F[...] and C[...] resided with the accused
in a Wendy House in H[…] Street, Vredenburg;

(c) The Wendy House is situated on the property belonging to Maria
Fienis, the sister of the accused who lived in the main house with her husband
Riaan Fienis and their children;

(d) The events leading up to the altercation between Ms O[...], the accused
and Ms A[...] are by en large not disputed insofar as it pertains to how it came
about to the ladies fetching the SASSA money, the dropping off of money by
Ms A[...] mother and the buying of drugs after collecting the monies;

(e) Derick Oosthun made plans with Ms O[...] for later that evening
presumably to have sex;

(f) The accused went to Linda’s house;

(g) The accused was apprehended in the Wendy House by the police.

Issues in dispute

[79] The following salient issues are in dispute:

(a) That the accused wielded an iron object;

(b) That the accused uttered threats of harm;

(c) That the accused threw C[...] through the window of the main house;

(d) That the accused assaulted C[...] with a beer bottle;

(e) That the accused stabbed C[...] multiple times;

(f) That the accused stabbed F[...] multiple times and

(g) That the accused resisted arrest.

Summary of the evidence in respect of Counts 1 and 2

Count One - Attempted murder

[80] According to the indictment it is alleged that the accused unlawfully and
intentionally attempted to kill Ms A[...] by hitting at her with a crowbar and or a beer
bottle. Ms A[...] testified that she was in the Wendy -house on the bed with her two
children. She was in the process of changing C[...]’s nappy. When she looked up
she saw the accused with a crowbar in his hand. The accused uttered words to the
effect that he just feels like he can kill her, F[...] and C[...]. Ms A[...] explained that
she became scared. She got the impression that the accused wanted to assault
them. Ms O[...] jumped up and when she was done changing the nappy she too
jumped up. They were trying to wrestle the accused until they reached the door. As
they reached the door, the siste r of the accused, Mrs Fienis, arrived. She pulled Ms
A[...] out of the house.

[81] The accused’ s version is when he knocked on the door, C[...] opened for
him. He told Ms O[...] that Derick Oosthun was waiting for her and she said that she
was not interested anymore. The accused told her that she can at least go and tell
him herself. When Ms A[...] interfered, an argument broke out between the two of
them. The argument , according to the accused was about him telling her that she
must not interfere in other people’s business. He told her that she made him feel bad
in front of his colleague. According to the accused, Ms A[...] wanted to go outside but
he prevented her from leaving by grabbing her by the collar. The accused stated that
he did not know where she was going as it was already dark outside. That is when
his sister came and pushed the door open.

Count Two – Attempted Murder

[82] It is alleged that the Accused, unlawfully and intentionally attempted to kill
C[...] O[...] by hitting at her with a crowbar. Ms O[...] narrated that the accused came
in with an iron object in his hand. According to Ms O[...], the accused said he will
“slaan onse koppe pap” and gestured as if he was going to hit . According to Ms
O[...], when Ms A[...] stood up the accused hit Ms A[...] with the iron against her
head. Ms O[...] testified that she tried to take the iron away. The accused left the iron
and then took the beer bottle and hit C[...] against the head with the beer bottle. Ms
O[...] explained that she held the accused so that Ms A[...] could get out. They
shouted for help and Maria, the accused’s sister kicked the door open.

Evaluation of the evidence in respect of counts 1 and 2

[83] This court is called upon is to consider whether the state has succeeded to
prove all the elements of the offence of attempted murder as per counts 1 and 2 of
the indictment, beyond reasona ble doubt. According to the accused Ms O[...] was
engaged to his brother’s eldest son, Bronwyn. The accused was aware that Derick
Oosthun planned to have a sexual encounter with Ms O[...], and when she refused,
the accused stated that she made him look bad in the eyes of his colleagues. His
words were during evidence in chief as was translated “and I told F […] and them
they made me feel like a P… in front of my co – workers. He even went as far as to
tell Ms A[...] not to interfere in other people’s business. It appears that the argument
on the accused’s version centred around Ms O[...]’s apparent change of mind to go
with Derick Oosthun.

[84] The accused, when confronted about the morals of encouraging Ms O[...] to
go with, Derick Oosthun, responded that “Derick is my foreman and my friend – I had
no problem…To tell you the truth that was things that happen on a daily basis”. The
situation evidently did not cause any feeling of discomfort to the accused, who
ultimately got upset and expected Ms O[...] to tell Derick Oosthun herself that she
was no longer interested.

[85] The accused’s version as to how many times Derick Oosthun was at the
house differed to that of Ms O[...] and Ms A […]. The accused indica ted that he had
been there once whereas Ms A […] and Ms O[...] stated that David Oosthun was at
the house twice; once with Boeta Bywas and the other time with the accused . It is
interesting that when the accused was asked whether there was a reason why
Derick Oosthun did not go into the Wendy House himself and ask C[...] himself, the
accused stated that it was because he never came into the house; he would always
park on the pavement and hoot. This, contradicts the accused proposition that Derick
Oosthun co uld have committed the murders, which suggestion, is in my view,
implausible on the accused’s own version.

[86] The accused, in an attempt to dilute the extent of his rage and action
conceded that he grabbed Ms A[...] by her collar. He is silent on t he events that
precede the grabbing and then justifies to some extent the reason for doing so. His
explanation was that Ms A[...] wanted to go outside but he prevented her from
leaving by gr abbing her by the collar. T he evidence is that they were wrestling until
they reached the door when Mrs Fienis entered. It may be so, that the accused
wanted to prevent her from going outside, but to say that it was because it was
already dark outside, is in my view, improbable. In any event, the door appeared to
have been locked as Mrs Fienis had to kick the door in order to gain access. In my
view, Ms A[...] wanted to escape from the accused and he tried to prevent her from
doing so by grabbing her by the collar. The court rejects the accused’s explanation
as not being reasonable in the milieu of what was happening. On the accused’s own
version, he stated that his sister came over to his Wendy House because of the
“shouting”. Mrs Fienis herself said she was woken up by the screaming “gil” that she
heard.

[87] Counsel for the accused furthermore argued that if the accused indeed
made those threats, then it would be improbable that Ms A[...] would have left the
children behind when she left the room. This argument, again, in my view, takes a
narrow approach to the events that played itself out in the early hours of the morning.
In order to demonstrate this point, it is necessary to consider the scene. The
common cause facts are that there was an argument between the accused, Ms A[...]
and Ms O[...], to the point where the accused own sister deemed it necessary to
investigate what was happening where she finds the accused physically grabbing Ms
A[...]. The fact that Mrs Fienis came into the Wendy -House, gave Ms A[...] an
opportunity to escape and flee into the main house where she sought refuge.

[88] It is evident that Ms A[...] described the object that the accused was wielding
as a crowbar. Ms O[...] was confronted about why the description of the object she
had given in evidence was different to that which Ms A[...] described, to which she
responded that she had forgotten what the name of the iron was. “Ek het nie yster se
naam onthou nie”. However, it is apparent that she described it to be roughly the
length of the microphone that is approxi mately 40 – 45 cm in length. What she
described was akin to an iron that is used to scrape coals out of a fire. She
confirmed that there is a fire -place / galley in the yard. Ms O[...] conceded that there
are differences between a crowbar and an iron used for fire and that it was in fact a
different instrument altogether. The accused emphatically denied having a crowbar
in his hand or close to him. The accused testified that the crowbar would not be kept
in the house, but in the garage.

[89] Inasmuch as the witnesses provided different descriptions of the iron object,
Ms O[...], in my view, proffered an explanation that she forgot the name of the
instrument, bearing in mind that she testified approximately 4 years after the
incident. It is app arent from Ms O[...]’s statement, Exhibit “E” where she stated
“Derick het vir haar gemik met die crowbar wat hy in sy hand gehad het”, that the
object was described as a crowbar. It is therefore my view that the evidence of Ms
A[...] and Ms O[...], insofa r as it relates to the presence of an iron object is not
contrived. The accused himself says that there is a crowbar on the property but that
it is kept in the garage. This strengthens the probability that the iron object was
indeed a crowbar; however, for the purposes of this matter, it is sufficient for the
court to conclude, based on the evidence as a whole, that there was an iron object
wielded.

[90] The utterance of the accused to the effect that he “felt like he could kill her
and the children” as per the testimony of Ms A[...] was denied by the accused, when
he retorted “Ek het nog nooit so gese nie” (I never said so). The accused denied the
version of Ms A[...] and Ms O[...] which was put to him. It was furthermore submitted
that if the accuse d had indeed said this, Ms O[...] would have heard it and
subsequently testified to it, but she did not. Interestingly, it is the defence who
confronted Ms O[...] about another purported inconsistency in her statement,
received into evidence as Exhibit “E”. In this statement, the following is recorded
“Derrick het toe kwaad geraak en gese hy slaan nou ons koppe sowel as ons kinders
sin pap”. What is recorded in Ms O[...]’s statement is in my view, similar to that of her
viva voce evidence that he will “slaan onse koppe pap”.

[91] It must be borne in mind that the statement was made by Ms O[...] on 02
May 2019, a day after the incident when the incident was relatively still fresh in her
mind. Her viva voce evidence in court was given more than 4 years after the
incident. It is my view that the probative value of the statement, made a day after th e
incident, carries significant weight.

[92] To argue that Ms O[...] would have heard it and subsequently testified to it is,
in my view, an approach which ignores the memorial of the event attested to by the
Ms O[...], under oath merely a day after the incident; not to mention that the
atmosphere within which the event was steeped as it unfolded; which included
shouting as per the testimony of Maria Fienis (she used the word “gil”), may account
for why certain things were heard and others not; and why the witnesses’ testimonies
are not identical. The accused himself confirms that they spoke “loudly”, albeit
perhaps a toned down exposition of the extent of the altercation.

[93] In the case of S v Bruiners en Anders 3 it was held that ‘[e]xperience had
shown that two or more witnesses hardly ever gave identical evidence with reference
to the same incident or events. It was thus incumbent on the trial court to decide,
having regard to the evidence as a whole, whether such differences were sufficiently
material to warrant the rejection of the State's version’.

[94] It can be safely accepted that to threaten to hit someone ’s head to a pulp
constitutes a threat to kill. It is in my view , a matter of semantics because if the
utterances are ultimately analysed, there is no room to doubt that it amounted to

3 1998 (2) SACR 432 (SE).
some form of threat to physically harm the complainant (s) and/or the child(ren). The
court is satisfied that threats were indeed made by the accused as the evidence in
this regard is corroborated.

[95] Counsel for the accused highlighted the contradictions in the evidence of Ms
A[...] and Ms O[...]; more particularly in relation to the assault on Ms A[...]. It was
argued that in the absence of a J88, no case has been made out for attempted
murder or assault with intent to do grievous bodily harm. It is the state’s contention
that the accused, inspir ed a belief that injury would be inflicted. There is no J88 or
medical reports to support allegations of assault. The evidence of Ms A[...] was that
she was not physically harmed, and therefore a J88 will be of no assistance.

[96] It is manifest that the versions of both Ms A[...] and Ms O[...] differ insofar as
the allegations of assault is concerned. Ms A[...] does not make mention of being
assaulted with the crowbar at all and neither did she testify about being hit with a
beer bottle as alleged i n the charge sheet. Ms A[...] conceded that neither she nor
Ms O[...] were struck with the crowbar. Ms A[...] explained that she became scared.
She got the impression that the accused wanted to assault them. It is further evident
that Ms A[...] did not testify that the accused hit C[...] with the beer bottle.

[97] The consideration before this court is ultimately whether the accused can be
convicted of attempted murder if only a belief to injure was inspired. The obvious
question is whether the accused attempted to kill Ms O[...] and Ms A[...] as alleged.
On the evidence presented, t here was a threat and a wielding of an iron object as
well as an interruption by Ms O[...] who tried to stop the accused . When considering
the unlawful conduct element ( actus reus), there are two kinds of attempts, namely
completed and uncompleted. In this regard, Watermeyer CJ remarked as follows in
Schoombie4

‘1 those in which the wrongdoer , intending to commit a crim e, has done
everything which he set out to do but has failed in his purpose either through

4 1945 AD 541 at 545 – 6.
lack of skill, or of foresight. Or through the existence of some unexpected
obstacle, or otherwise,

2 those in which the wrongdoer has not completed all that he set out to
do, because the completion of his unlawful acts has been prevented by the
intervention of some outside agency.’

[98] The writer Jonathan Burchell ‘Principles of Criminal Law’ (5th Ed)5, remarked
that ‘[a]lthough the Chief Justice in Schoombie did not expand upon completed
attempts, it seems probable that he had in mind the kind of situation where, for
instance, intending to kill, X fires a gun at Y, but the bullet misses. Clearly, in such a
case there w ould be sufficient unlawful conduct for attempted murder and there
would be no problem as to whether X’s act was sufficiently proximate to the killing of
Y to amount to an attempt.6

[99] A subjective or objective test may be applied to de termine whether an
accused’s acts amount to an attempt. It is trite that the subjective test remains with
the state of mind of the accused. It is further trite that i n an instance where an
accused intends to commit the crim e in question, the accused wi ll be liable for
attempt as soon as he or she does an act in furtherance of that intention, no matter
how remote the act may be from the completion of the crime. On the other hand, the
objective test requires that the acts of th e accused in pursuance of his intention to
commit the crime in question must have proceeded a considerable way towards the
commission of that crime.7

[100] In Schoombie8 (supra), Watermeyer CJ concluded that:

‘…in the case of interrupted crimes an attempt to commit such crime is proved
when the court is satisfied from all the circumstances of the case that the
wrongdoer, at the time he was interrupted, intended to complete the cri me

5 Burchell J ‘Principles of Criminal Law’ (Juta) 5th Ed.
6 Page 547.
7 Page 550.
8 Ibid, page 551.
and that he had at least carried his purpose through to the stage at which he
was “commencing the consummation” [of the crime].’

[101] Ms A[...], during cross -examination conceded that she and Ms O[...] were
not struck. Would it, however be sufficient if one says I feel like I want to kill you and
then brandishes a weapon that could potentially cause fatal injuries leading to one’s
demise or should there be more. To take it a step further, did those utterances,
coupled with the gesture that he want ed to hit Ms A[...] inspire the belief that he
would kill? In this instance, to reiterate, Ms A[...] evidence was that she became
scared.

[102] Ms O[...] on the other hand jumps into the mix and both the ladies
challenge the accused, presumably in defence of what was about to happen. It must
also be borne in mind that the accused is much older than Ms A[...] and Ms O[...] and
was evidently the aggressor, on the versions of Ms A[...] and Ms O[...] and to some
extent the accused himself as he held Ms A[...] by her collar. From the evidence on
record, it is apparent that the accused made a gesture to hit towards Ms A[...]. It is
therefore my view that the conclusion to which both Ms A[...] and Ms O[...] came was
inspired by the threat made by the accused coupled with his ongoing aggression
until Mrs Fienis arrived who observed that the accused was holding Ms A[...] by her
collar.

[103] Two contradictions in the versions of Ms A[...] and Ms O[...], were
highlighted by the defence; the first being that the accused hit Ms A[...] with the
object he was wielding and the second being that the accused hit towards Ms A[...]
with a beer bottle and missed and ultim ately struck C[...] on the head. The question
to be answered is whether these contradictions are sufficiently material to warrant
the rejection of the witnesses’ evidence in this regard as i t was contended by the
defence that if it happened then Ms A[...] would have testified to that. It was argued
that Ms O[...] lied in this regard.

[104] In dealing with contradictions, this court is mindful of what was stated in S v
Mkohle9 where Nestadt JA stated the following:

‘Contradictions per se do not lead to the rejection of a witness’
evidence…They may simply be indicative of an error (S v Oosthuizen 1982
(3) SA 571 (T) quoting from 576G-H:)

…it is stated that not every error made by a witness affects his credibility; in
each case the trier of fact has to take into account such matters as the
nature of the contradictions, their number and importance, and their bearing
on other parts of the witness’ evidence. No fault can be found w ith his
conclusion that what inconsistencies and differences there were, were “of a
relatively minor nature and the sort of thing to be expected from honest but
imperfect recollection, observation and reconstruction”. One could add that,
if anything, the c ontradictions point away from the conspiracy relied on (98f -
g)’

[105] Ms O[...]’s version that she saw the accused hitting C[...] with the beer
bottle. The possibility that C[...] was in deed struck with the beer bottle cannot be
excluded if regard is had to the corroborative evidence relating to the injuries noted
in the Post-Mortem Report – Exhibit D2, and the testimony of Doctor Scherman that
there was blunt force trauma to the head of C[...]. Her evidence is that the blunt force
trauma could have been inflicted by any blunt object by hitting against the head or by
falling.

[106] It must be borne i n mind that the scene was fluid and could best be
described as a commotion. The accused on the other hand, denied that he assaulted
Ms A[...]. He was unable to explain why Ms A[...] was running. When it was put to the
accused that Ms A[...] ran away to hide inside the main house, he responded by
saying “That’s what she said…I can’t comment on that” . In considering the
probabilities and the fact that Mrs Fienis had to literally kick down the door, and
found the accused holding Ms A[...] by the collar, which is confirmed by the accused

9 1990 (1) SACR 95 (A).
on his own version and corroborated by Ms O[...], there is no disp uting that there
was a physical enco unter of some sort between the a ccused and Ms A[...]. This,
inescapable conclusion, is reached notwithstanding Ms A[...] testifying that she was
not physically assaulted. In this context the court accepts that Ms A[...] was not
physically assaulted with the iron object, but that the accused inspired a belief that
he would harm her using the iron object that he was wielding.

[107] As indicated earlier, contradictions per se do not render the version of a
witness untruthful. I am of the view, that it lends credence to the versions of Ms A[...]
and Ms O[...], whom I find gav e an honest but imperfect account of what transpired
that fateful night. This court is satisfied that they did not conspire nor exaggerate
their recollection of events. I am satisfied that they were both honest and credible
witnesses as there are safeguards that support their versions which includes, but is
not limited to the following:

(a) Maria Fienis had to kick down the door of the Wendy house after
hearing the screaming that emanated from the Wendy House;

(b) When she entered the Wendy Ho use, the accused was holding Ms
A[...] by the collar;

(c) That Ms A[...] and Ms O[...] had to seek refuge in the main house to the
extent that Ms A[...] hid in a cupboard ; In fact, Ms A[...] testified that the
accused’s sister told her that the accused will hurt her. Ms A[...] orated that
they put her in the wardrobe and closed the door. In her words… “Trap die
deur toe van kas”. This, in my view, to ensure that the accused does not get
to Ms A[...] to hurt her as per the fears expressed by Mrs Fienis, based on Ms
A[…]’s version.

(d) In an attempt to further protect Ms A[...], the accused was informed,
after he came to the main house looking for Ms A[...], that she was not there.
If there was no threat to her, the Fieni s’s would not have lied about her
whereabouts to the accused . This is based on the accused own version that
he went to the main house to enquire after Ms A[...] and what he was told ,
seemingly by Riaan Fienis, as well as the account of Ms O[...] in terms of what
she overheard while she was in the room taking shelter.

[108] I am therefore satisfied that an iron instrument was wielded when the threat
was made by the accused. The next question to be answered is whether a conviction
on attempte d murder could be sustained if there was no physical assault. I this
regard, this court accepts that Ms A[...] was not assaulted with the iron object or beer
bottle as per the indictment, which beggars the question as to whether the absence
of an actual assault be sufficient to find the accused guilty of attempte d murder. It is
trite that assault may be committed without there being any direct or indirect physical
contact or impact. The essential requirements are therefore as follows:

(a) There must be a threat of violence against the person and

(b) It must be a threat of imminent violence.

[109] It is manifest that the accused inspired the belief in Ms A[...] that he would
harm her as she testified that she became scare d. This coupl ed with the ongoing
attack towards her , in my view is sufficient to sustain a conviction, by virtue of the
wrongful and unlawful conduct of the accused, however the question is which charge
would these elements satisfy ; attempted murder, assault with the intent to do
grievous bodily harm or just common assault?

[110] Apart from the utterance, there is no other evidence to support any physical
attack on Ms O[...]. Her evidence was that the accused was angry at her for not
going with Derick Oosthun. The utterance was not only directed at Ms A[...] but to all
the occupant s including the children. It is uncontroverted that Ms O[...] was
unharmed. She also did not testify that these threats inspired the belief that the
accused would harm her , but jumped to the defence of Ms A[...] who was the
recipient of the initial onslaug ht. The State failed to elicit more information regarding
Ms O[...]’s intervention as she stated that “ons het gestoei met Derick na die deur se
kant om uit te kom”.

[111] This presupposes that there may have been something more. When one
wrestles “stoei”, it means to take part in a fight. The dictionary meaning of wrestle is
to grapple with one’s opponent and trying to force them to the ground. This court
cannot convict based purely on an assumption. Ms O[...] was brave enough to go
back to fetch he r daughter B[...] and when she did, there was no further interaction
between the accused and her according to the evidence. The question to be
answered is whether there is sufficient evidence before this court to sustain a
conviction on attempted murder in respect of count 2.

[112] In considering the allegations made as per the indictment, t he question
arises whether the accused would have actually killed Ms A[...] and Ms O[...], had he
not been interrupted or would he have only assaulted with the intent to do grievous
bodily harm? The belief was inspi red, in the case of Ms A[...]. It is evident that the
accused’s actions proceeded a considerable way and was interrupted. In this regard,
Ms O[...] testified that she held the accused so that Ms A[...] can get out. This is
when Mrs Fienis kicked the door open and found the accused holding Ms A[...] by
the collar. Who knows what the accused would have done next h ad Mrs Fienis not
entered the Wendy House at the time when she did. Her evidence was that she tried
to push the door open but could not open the door, so she resorted to kicking the
door open.

[113] The ultimate test also known as the equivocality te st takes into
consideration that the steps taken by the accused must have reached the point when
they themselves indicate beyond reasonable doubt that he or she intended to
commit the crime he or she is charged with attempting. 10 In this regard, Watermeyer
CJ in Schoombie stated:

‘Provided always that his acts have reached such a stage that it can properly
be inferred that his mind was finally made up to carry through his evil purpose
he deserves to be punished because, from a moral point of view, the evil
character of his acts and from a social point of view the potentiality of harm in

10 Ibid 553.
them are the same, whether such interruption takes places soon thereafter or
later.’

[114] It is therefore incumbent on the court to apply the guiding principles set out
in Schoombie, in respect of counts 1 and 2, taking into account all the
circumstances of the case. The accused commenced the consummation of the
crime by declaring that he would kill those in the room while wielding the iron object
(mikking / gesturing to hit), although on Ms A […]’s version she was neither hit with a
beer bottle or crowbar. The accused, according to Ms O[...] wanted to hit Ms A[...]
with the beer bottle and ultimately hit C[...] with the beer bottle on his head. His
ultimate objective seemingly was to kill, had it not been for the interruption of Mrs
Fienis who came into the house when she did, and the actions of both Ms A[...] and
Ms O[...] to try and disarm the accused and ward off the imminent attack . This act in
my view is sufficiently proximate to the attack on Ms A[...] and amounts to a
completed attempt at the very least on assault with intent to commit grievous bodily
harm, by virtue of the instrument(s), albeit an iron object or beer bottle. I am
therefore satisfied that the accused’s mind was made up as h is actions were
suggestive that he was in the process of and gestured that he would inflict physical
harm. The fact that he missed Ms A[...] in my view does not exonerate his actions.
The evidence further indicates that there was a wrestling of some sort. Had the iron
object or beer bottle (the instrument) been a firearm, the inexorable conclusion would
be that the accused would be guilty of attempted murder.

[115] It is trite that there can be an attempt to commit an offence without the
element of an actual physical assault, if regard is had to the definition distilled earlier
in this judgment. There is a clear overlap between the crimes o f assault and assault
with intent to do grievous bodily harm. This matter ther efore calls for a value
judgment of a practical nature. Consequently, on a conspectus of the evidence, I am
satisfied that a substantial step was taken by the accused towards the commission of
the crime of assault with intent to do grievous bodily harm in respect of cou nt 1,
being a competent verdict as the following essential elements are present:

(a) Unlawfulness;

(b) Intentional and

(c) Inspiring an apprehension that force would be applied.

[116] This court has already found that an iron instrument was wielded when the
threat was made by the accused. To cement my conclusion, both Ms A[...] and Ms
O[...] testified that they wrestled with the accused as earlier stated , which
presupposes that there was some physical force exchanged during the altercation. I
am therefore satisfied , in considering the totality of the evidence that the accused ’s
actions were unlawful and intentional and inspired the belie f in Ms A[...] that force
would immediately to be applied to her with the iron object , which satisfies the
elements of assault with intent to do grievous bodily harm.

[117] In considering count 2, this court is enjoined to be cautious to apply the
subjective test in respect of the count of attempted murder in respect of Ms O[...]. At
the time when Mrs Fienis came into the Wendy House, the accused did not yet
consummate his intention to physically harm Ms O[...], based on Ms O[...]’s ow n
version. I am therefore not persuaded that the state discharged the onus of proving
attempted murder in respect of count 2 as the attack was not directed at Ms O[...]
yet, even though the utterance was. It is clear that Ms O[...] jumped in to defend Ms
A[...] and was seemingly not hurt in the process.

Evaluation of the evidence on Counts 3 and 4

[118] It is common cause that there is no eye witness account of what happened
to F[...] and C[...]. The State’s case a gainst the accused is purely circumstantial in
nature as b oth Ms A[...] and Ms O[...] left the Wendy House, followed by Maria
Fienis.

[119] The matter of R v Hlongwane11 crystallises that the correct approach is to
consider all evidence "in the light of the totality of the evidence of the case". The
second principle which this Court must bear in mind in assessing all the evidence is

11 1959 (3) SA 337 (A).
the approach to be taken to inferences to be drawn. It is trite that inferences are not
to be based on speculation but are to be grounded on fact. The seminal case of R v
Blom12 distils the courts approach to dealing with circumstantial evidence where the
court held that there are two cardinal rules of log ic as quoted with approval in the
matter of S v Reddy & Others 13 which is also instructive on the courts approach
when assessing circumstantial evidence where the court held as follows:

“In assessing circumstantial evidence one needs to be careful not to approach
such evidence upon a piece -meal basis and to subject each individual p iece
of evidence to a consideration of whether it excludes the reasonable
possibility that the explanation given by an accused is true. The evidence
needs to be considered in its totality. It is only then that one can apply the oft-
quoted dictum in R v Blom 1939 AD 188 at 202 -3, where reference is made to
two cardinal rules of logic which cannot be ignored. These are, firstly, that the
inference sought to be drawn must be consistent with all the proved facts and,
secondly, the prov ed facts should be such ‘that they exclude every
reasonable inference from them save the one sought to be drawn’.”

[120] It therefore behoves this court to consider the proved facts with due
consideration of what was held in S v Van Der Meyden 14 where the following was
stated:

‘…The proper test is that an accused is bound to be convicted if the evidence
establishes his guilty beyond reasonable doubt, and the logic corollary is that
he must be acquitted if it is reasonably possible that he might be innocent.
The process of reasoning which is appropriate to the application of that test in
any particular case will depend on the nature of the evidence which the court
has before it. What must be borne in mind, however, is that the conclusion
which is reached (whether to convict or acqui t) must count for all the
evidence. Some of the evidence might be found to be false; some of it might

12 1939 AD 188.
13 1996 (2) SACR 1 (A) 8 C-E
14 999(1) SACR 447 (W) at 449c-450b.
found to be unreliable; and some of it might be found to be only possibly false
of unreliable; but none may simply be ignored.’

[121] It is also uncontroverted that F[...] and C[...] was left in the Wendy House
after Ms A[...] and Ms O[...] left to go into the main house. Ms O[...]’s testimony was
that when she went back to fetch her daughter , C[...] was lying on the floor by the
door. The accused’s version is that he stood outside for 5 – 10 minutes and then
went to the main house where he knocked on the door and informed Riaan that he
was leaving, presumably to look for Ms A[...]. It can be accepted that both Ms A[...]
and Ms O[...] were in the bedroom. Ms O[...] testified as to what she heard while she
was in the room hiding.

[122] Her evidence was that the accused knocked on the door. On the accused’s
own version, he confirms that he knocked at the door. They differ on who opened the
door, which in my view is not material. According to Ms O[...], C[...] came through
the window thereafter, “soos een wat hom deur die venster gegooi het”. Ms A[...]’s
testified that while she was in the cupboard hiding, she heard crying, then she heard
the lounge window’s glass breaking. According to her, that was the time when the
accused threw her 18-month-old son, C[...] through the closed window.

[123] The defence argued that M rs Fienis testified that C[...] came through the
window. It was submitted that the Prosecutor did not exercise the full scope of
examination in chief by following up on an open ended question such as inquiring
how the child came through the window. The defence contended that the prosecutor
did not ask the pertinent question as to who threw the child through the window. the
defence submitted that the Prosecutor did not pursue this line of questioning not due
to negligence or incompetence but rather because it would not have further the
State’s case had they done so.

[124] Whilst is can be accepted that Ms A[...] and Ms O[...] did not see the actual
manner in which C[...] came to be in the house, there is in my view sufficient
collateral evidence that support this conclusion which includes:

(a) The shattered lounge window;

(b) That C[...] was found amongst the shards of glass on the floor;

(c) The independent witnesses who arrived on the scene found the child
on the floor where there were shards of glass.

[125] In this regard, Ms Thompson, the Emergency Practitioner, testified that
upon their arrival, she noticed the broken window and upon entering she notice a
baby and a girl lying down on the floor. The boy was lying closer to the door. He was
wearing a nappy. She observed that there was blood on his back. He was not
moving at the time. He was lying on his stomach. According to Ms Thompson, t here
was a lot of glass lying in the vicinity where he was.

[126] I am therefore, satisfied that the inference sought to be drawn is consistent
with all proven facts to suggest that C[...] had to have been thrown through the glass
window. In my view, based on these facts, no other reasonable inference can be
drawn but that C[...] was thrown through the window. T he question which remain is
who threw him through the window.

[127] The accused version, which will be evaluated later in this judgment is that
he left the premise and therefore it was not him. The defence makes the proposition
that the murders could have been committed by someone other than the accused as
the premises is not secur ed. There is no locked gate that would prevent outsiders
from entry.

[128] The defence submitted th at in the circumstances there are reasonable
alternative possibilities open namely, that someone may have entered the premises
after the accused left or may have been already hiding on the premises and that that
person (or persons) is responsible for killing the children. I will deal with this more
fully later in this judgment.

[129] On the evidence of Ms O[...], Derick Oosthun and one other unknown man
had entered the premises on their own and walked to the Wendy House, which
places at least two other persons on the premises that ev ening according to the
defence. More especially as, Derick Oosthun was present at least twice.

[130] It is noteworthy that the defence would place reliance on Ms O[...]’s version
who was called out by the accused as not being truthful. It also contra dicts the
accused’s evidence that Derick Oosthun never came into the house. According to
the accused, Derick Oosthun waited in the vehicle.

[131] It was also submitted, in light of the fact that Mr Derick Oosthun was upset
with Ms O[...] because she did not want to have sex with him may be plausible
motive for being angry with her and wanting to take his frustration out by resorting to
violence. The argument proffered that Derick Oosthun was drinking which could
have made him violent could also hold true for the accused, who was also drinking.

[132] This hypothesis must however be tested against the proved facts, inclusive
of the formal admissions and common cause facts already dealt with earlier in this
judgment. According to Ms O[...], Maria Fienis was standing in the living room and
shouted “No Derick No!!”. C[...] was lying on the ground. He was crying and full of
blood. When the police arrived, Mrs Fienis told the police officer to go and look how
her brother stabbed the children.

[133] The defence argued that M rs Fienis did not testify that she shouted words
to the effect “No Derick No!!” It was further submitted that aside from M rs Fienis
stating that she saw the accused holding Ms A[...] by the collar, M rs Fienis did not
implicate the accused in the murders of F[...] and C[...] or attempted murders upon
Ms A[...] and Ms O[...].

[134] To re cap, the court in the Section 190 Application, made the finding that
sufficient basis was been laid for Mrs Fienis to be cross-examined on her statement;
however, despite this ruling, the state abandoned its application in terms of Section
190 (2) to declare Mrs Fienis a hostile witness as she deviated from her statement.

[135] Mrs Fienis was never cross -examined by the defence. The defence
however illuminated during argument that Mrs Fienis was confro nted with her
witness statement but she stated that the witness statement was incorrect in certain
pertinent areas namely that she has seen the accused throw the child through the
window and that the statement was taken under oath. In the trial within a tr ial it was
held that the statement was indeed not taken under oath. It was furthermore
highlighted by the defence in argument that the Prosecutor did not ask Mrs Fienis
the relevant open ended questions in examination in chief such as why the relevant
portion in her written statement was incorrect and why she had initially made that
statement. Furthermore, the defence submitted the fact that Ms Maria Fienis written
statement is incorrect is therefore left unchallenged.

[136] The defence highlighted that Mrs Fienis testified that she did not want to go
to the separate entrance because “I don’t know who else is there at the back” which
the defence suggests to be clear evidence that other people may have been present
on the scene at the time of the incident which may have elicited evidence in favour of
the defence.

[137] Counsel for the accused repeatedly referred to Mrs Fienis as a non-witness
but selectively cherry pick which portions of her evidence are f avourable for the
defence case. In fact, Co unsel for the accused in his address to the court submitted
that Mrs Fienis’ credibility is destroyed.

[138] It is apposite to mention that the State did not pursue the Section 190 (2)
Application. There was therefore no ruling made by this court in this regard. This
witness’ viva voce testimony stands unchallenged as there was no cross -
examination. This court is therefore beholden to exercise extreme caution under
these circumstances and will not consider the uncommissioned statement of Maria
Fienis, marked as Exhibit “F” as no probative value can be attached thereto. The
court however still has the benefit of the evidence of independent witnesses, who
testified as to what Mrs Fienis said either to them directly or which was heard by
them on the day of the incident which, in the case of Sergeant Kobe, remains
unchallenged. I will deal with these portions of the evidence during the course of this
judgment where relevant. In other instances, the court finds corroboration in respect
of Maria Fienis’ evidence, which I will also deal with later in this judgment which
cements the reliability that the court may place on the evidence as it does not stand
alone.

[139] Whilst credibility and reliability are often synonymous with each
other, it is my view that there may be a departure when portions of evidence
are corroborated by an independent, credible witness, which will lend
credence to the veracity of the evidence of a wi tness whose credibility may
have been shaken, in order to safely accept same as being reliable. In this
regard, such evidence will not stand alone, but will be underpinned by
collateral evidence to strengthen the truthfulness thereof. There must
however b e strong emphasis on approaching the evaluation of a such a
witness’ testimony with extreme caution, in the interest of justice, taking into
account the conspectus of the evidence in its entirety.

[140] Whilst Mrs Fienis’s credibility was shaken, t he approach as set out
above will be applied, in the interest of justice with due regard to ensuring that
there are safeguards to underscore the accep tance of such evidence in order
to separate the tears from the wheat.

[141] This court will proceed to evaluate the evidence in accordance with the
guidelines set out in State v Hadebe and others 15 in dealing with the correct
approach for evaluating evidence with reference to Moshephi and Others v R 16 as
follows:

“The question for determination is whether, in the light of all the evidence
adduced at the trial, the guilt of the appellants was established beyond
reasonable doubt. The breaking down of a body of evidence into its
component parts is obviously a useful a id to a proper understanding and
evaluation of it. But, in doing so, one must guard against a tendency to focus
too intently upon the separate and individual part of what is, after all, a mosaic
of proof. Doubts about one aspect of the evidence led in a trial may arise
when that aspect is viewed in isolation. Those doubts may be set at rest

15 1998 (1) SACR 422 (SCA) at 426E-H
16 (1980 – 1984) LAC 57 at 59F-H.
when it is evaluated again together with all the other available evidence. That
is not to say that a broad and indulgent approach is appropriate when
evaluating evid ence. Far from it. There is no substitute for a detailed and
critical examination of each and every component in a body of evidence. But,
once that has been done, it is necessary to step back a pace and consider the
mosaic as a whole. If that is not do ne, one may fail to see the wood for the
trees.”

Credibility and reliability

[142] At this juncture it would be apposite to consider whether Ms O[...]’s
evidence insofar as it pertains to the utterance of Mrs Fienis to the effect “No Derick
No!! and her report to the police can be safely accepted in light of Mrs Fienis ’s
recantation of her statement. As earlier stated, the collateral evidence that his co urt
has accepted is that C[...] was thrown through the window. This beggars the
questions as to whether Mrs Fienis ’ identification of the accused through her
utterance be sufficient to conclude that it was indeed the accused who threw C[...]
through the window. I emphasise here that this is based on Ms O[...]’s evidence or
version.

[143] The reliability of Ms O[...]’s evidence is therefore crucial, especially as she
heard Mrs Fienis’ utterance and shortly thereafter, observed the body of C[...] on the
floor, which event s almost occurred contemporaneously. I pause here to mention
that Constable Kobe related that Mrs Fienis told him that her brother threw the child
through the window . His testimony in this regard was never challenged by the
defence during cross-examination. This in my view, serves as corrobor ation from an
independent witness whose evidence in this regard went unchallenged, and neither
was the credibility or reliability of Constable Kobe’s evidence brought into question.
He presented to this court as an independent, credible and reliable witnes s. The
aspect regarding Kobe’s identification of the accused will be dealt with later in this
judgment.

[144] Ms O[...] was confronted with her statement wherein discrepancies were
pointed out. She confirmed that she omitted to include: “No, Derick, No”. In the
statement of Ms O[...], Exhibit “E” the following is recorded:

“Zanre het gevra iemand moet haar kinders gaan haal, maar Derick se suster
het gese nee hy gaan ons steek”

[145] Interestingly, the Defence only challenged this portion of the statement.
Whilst the absence of the word to the e ffect “No, Derick, No”, is notable , it does not
mean that it did not happen, as a statement may at times not contain every single
detail of an event. T he statement however reveals other aspects that serve to
corroborate the circumstantial evidence in relation to counts 3 and 4 and direct
evidence in relation to counts 1 and 2 respectively. As a starting point, if only this
excerpt is considered , there is an utterance “hy gaan ons steek”. The Post Mortem
report and viva voce evidence of Doctor Sherman support the findings that F[...] and
C[...] were stabbed. In addition, a knife was found under the pillow of the bed on
which F[...] was lying when she was found by Mrs Fienis, as depicted in the photo
exhibit and forms part of the accused’s admissions in terms of Section 22 0 of the
CPA. Furthermore, the actions of Mrs Fienis as earlier illuminated where she hid Ms
A[...] in the cupboard for her own protection is clearly reinforced as she expressed
her fears regarding the potential actions of the accused that he would hurt Ms A[...]
as she stated during her testimony.

[146] The very statement which the defence used in an atte mpt to discredit Ms
O[...], unequivocally portrays the accused as the aggressor. The statement records
that the accused got angry and uttered words to the effect “hy slaan nou onse koppe
sowel as onse kinders sin pap”. The statement goes further where Ms O[...] recalls
that the accused “het vir h aar gemik met die crowbar wat hy in sy hand gehad het.”
The viva voce evidence of Ms O[...] describes something other than a crowbar, but
indicated later in her testimony that she fo rgot the name of the instrument as earlier
dealt with in my judgment. In m y view, nothing turns on the accuracy of the
description of the object as both descriptions describes an iron instrument. Both Ms
O[...] and Ms A[...] are clear that the accus ed wielded an iron type object as per my
earlier finding.

[147] Ms O[...] was honest about her using TIK on the day. She did not hide this
fact which in my view, lends credence to her being an honest and truthful witness.
Ms A[...] also confirmed using TIK that day. Ms O[...] testified that it made her calm,
when she was asked ab out the effects of the drugs. Ms A[...] also conceded during
cross-examination that she was alrea dy using drugs prior to meeting the accused
and also during the time when they were in a relationship. The fact that Ms A[...] and
Ms O[...] used drugs prior to the incident was never raised by the defence either
during cross -examination or argument to sug gest that it may have impaired their
recollection of the events and thus impact an impact on their credibility and reliability.

[148] The manner in which contradictions are to be dealt with has been
previously dealt with in this judgment and as such, does not require restating save to
emphasise that contradictions are not always indicative that a witness is untruthful.
Safeguards in the form of collateral or co rroborative evidence invariably serves to
lend credence to a witness’ testimony as in this case where Ms O[...] version saw the
accused hitting C[...] with the beer bottle. As previously stated, there is corroboration
in the form of independent evidence. The Post-Mortem Report – Exhibit D2, the skull
examination of C[...], revealed that there was bruising on the inner aspect of the
scalp. Furthermore, the brain was swollen and pale with no intracranial
haemorrhages present. In additi on, there was a Y -shaped tear wound on the frontal
scalp with underlying left frontal bone fracture through the coronal suture and parietal
bone extending to lambdoid suture of the skull. The wounds on the skull and head of
C[...], serves as co rroboration that he may have been hit with the beer bottle and
thrown through the glass window, bearing in mind that C[...] succumbed as a
consequence of all the injuries inflicted and not one injury in isolation as per the
testimony of Dr Scherman.

Timeline

[149] I pause here to deal with the timeline that the defence argued was not
sufficiently established in order to draw the inference that the accused was the one
who inflicted the injuries on F[...] and C[...]. The critical aspect, according to the
defence is how much time elapsed on the state’s version between the knock on the
door and the entry of C[...] through the window. T his, it was argued, was never
established by the sta te. It was submitted that the state had ample opportunity to
establish the timeline but requested that the court infers that it was not done because
it would not have benefited the state’s case.

[150] Counsel for the defence further contended that Ms O[...] testified that she
had run into the main house and climbed on top of the cupboard when she heard the
accused knock on the door and she heard Mrs Fienis open the door. Ms O[...] heard
the accused ask where Ms A[...] was and Mrs Fienis informed him that she was not
there. According t o Ms O[...], the accused left and Mrs Fienis closed the door.
Thereafter C[...] came through the window. In her words “it was like someone threw
C[...] through the window”. Ms A[...] testified that she was in the cupboard for about 2
hours to which the Prosecution conceded that the witness was not good at
calculating time.

[151] It is common cause that F[...] and C[...] were left behind in the Wendy -
House with the accused. Ms A[...] testified that w hile she was in the cupboard, she
heard crying, then she heard the lounge window’s glass breaking. That was when
the accused threw her 18 -month-old son, C[...] through the closed window. She
narrated that she heard C[...] crying. Ms A[...] stated that she tried to get out of the
cupboard to check why here children were crying. Eventually she did not hear F[...]
crying in the background anymore. Ms A[...] and Ms O[...] could not see what was
happening in the lounge as they were hiding in Maria’ s room and relied on what they
heard. When asked during re -examination whether Ms O[...] could see the accused
walk away, she responded by saying “I heard the door being closed and that is how I
knew that he walked away”.

[152] The accused on the oth er hand stated that he was standing outside the
Wendy House for about 5 to 10 minutes and then went to knock on the door of the
main house, whereafter he left.

[153] The fact that Ms A[...] indicated that she was in the cup board for 2 hours,
viewed holistically with the other evidence on record suggests that the probabilities
lean more towards the series of events happening in a shorter period of time. This
court finds corroboration for this conclusion in the following:

(a) Constable Kobe testified that he received a complaint on 1 May
2019 at around 2:30 a.m. that there was a fight at a H[…] Street address;

(b) Maria Fienis testified that she was woken in the early hours of the
morning at around 2:10 on 1 May 2019;

(c) F[...] was declared dead on 1 May 2019 at 03h44;

(d) C[...] A[...] was declared dead on 1 May 2019 at 04h25;

(e) Sergeant Fortuin testified that the family of the deceased came into
the charge office at 5:20am to inform them that the accused returned to the
house.

(f) On the accused’s version he returned to the Wendy House and at
around 5 a.m. was awoken by people talking.

[154] It was Maria Fienis who testified that she was the one who called the police
and if regard is had to the time when the call was made in relation to the time when
she was woken by the screaming and commotion, then the incident of the child being
thrown through the window happened within less than the 20 minutes from the time
she was awoken to the time when the call was made. This accords with the
sequence of events as described by Ms O[...]. Ms A[...] stated that she heard crying
and then she heard the windo w breaking; she heard C[...] crying. The fact that Ms
A[...] said that she was in the cupboard for 2 hours ought to be considered within the
contextual scene because her exit from the room was prevented by the sister of the
accused notwithstanding her atte mpts to see why C[...] was crying. She testified “I
tried to get out to check why they were crying” She stated that it is only after she
could no longer hear F[...] crying that Mrs Fienis let her out of the room. This is when
they made the phone call to her mother.

[155] In any event, if regard is to be had to the declaration of the time of death of
the children, by an independent source, and that by then F[...] was already deceased
for an hour, Ms A[...] could not have been in the cupboard for 2 hours. On the
accused’s own version , i t is therefore probable that the accused committed the
murders between the time when Mrs Fienis, Ms A[...] and Ms O[...] left the Wendy
house and the time when Mrs Fienis made the call to the police, bearing in mind that
the accused stated he allegedly stood outside for approximately 5 to 10 minutes. Ms
O[...]’s evidence was that she held the accused and Ms A[...] ran out to the main
house. According to Ms O[...] she stated under oath “Derick het te ruggedraai en in
die kamer ingegaan” Ms O[...] stood at the door of the Wendy House and then went
in to fetch her child. She testified that F[...] was in the room and C[...] was lying on
the floor by the door. The accused, corroborates the version of Ms O[...], which lends
credence to her version. In this regard, the accused testified that Ms O[...] returned
to fetch her child.

[156] If consideration is had to the probabilities, it is unlikely that the accused
would have left the children that he professed to care for immediately, especially as
C[...] was on the floor. It is my view, that the only inference that can be dra wn is that
the accused, when he went into the Wendy House , it gave him the op portunity to
finish what he threatened he would do. Ms O[...] places the accused inside the
Wendy House and shortly thereafter C[...] is flung through the window and the police
is summoned.

[157] In my view, a definite timeline has been established and in the context of
the factual matrix, there is nothing untoward about Ms A[...] perception of the time
lapse, given the traumatic sequence of events of that night. I make no negative
inference in this regard as there is sufficient collateral evidence to support the
inference that the accused was the las t person left with the children , inside the
Wendy House and had time enough to commit these heinous acts before leaving the
property. However, it is incumbent on this court to consider whether these acts could
have been perpetrated by someone else as suggested by the accused.

Other Probabilities

[158] This court is enjoined to consider the strength and weaknesses in the
evidence and consider the merits, demerits and the probabilities. 17 This
consideration includes the probabilities that it could have been someone other than
the accused who committed the murders. During cross -examination it was
suggested:

(a) that there is bad blood between the accused a nd the father of the
children;

(b) demonstrated that there were other people who had access to the
property such as Derick Oosthun and an unknown gentleman who
accompanied the accused;

(c) Derick Oosthun was upset that Ms O[...] rejected his advances for sex

(i) Made in the car when Ms A[...] drew money;

(ii) Being rejected after two further attempts to persuade Ms A[...] for sex
at the house of the accused

(d) That access to the property was unrestricted demonstrated by the
version that Derick Oosthun arrived there with another person – that someone
could come from the street to knock on the door and as such it could have
been Derick Oosthun or the other man.

(e) Mrs Fienis described the property and explained that there is a fence
around the main house.

[159] This court is to have regard to the cumulative effect of all the inference. S v
Reddy & Others (supra), referred with approval to R v De Villiers 18 where Davis
AJA stated as follows:


17 S v Trainor 2003 (1) SACR 35 (SCA) para 9; S v Chabalala 2003 (1) SACR 134 (SCA) para 15.
18 1944 AD 493 at 508 – 9.
‘The court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference to be drawn from each
one so taken. It must carefully weigh the cumulative effect of all of them
together, and it is only after it has been done so that the accused is entitled to
the benefit of any reasonable doubt which it may have as to whether the
inference of guilt is the only i nference which can reasonably be drawn. To put
the matter in another way; the Crown must satisfy t he Court, not that each
separate fact is inconsistent with the innocence of the accused, but that the
evidence as a who is beyond reasonable doubt inconsistent with such
innocent.’

[160] The court in S v Reddy & Others (supra), also referred to the remar ks
made by ‘De Waal JP in R v Herbert 1929 TPD 630 at 636 ad Rumpff JA in S v
Glegg 1973 (1) SA 34 (A) at 38H to the effect that in considering the effect of
evidence, one need not be concerned with “remote and fantastic possibili ties” and
that it is not incumbent upon the State to eliminate every conceivable possibility that
may depend upon “pure speculation”. The fact that a number of inferences can be
drawn from a certain fact, taken into isolation, does not mean that in every c ase the
State, in order to discharge the onus which rests upon it is

‘obliged to indulge conjecture and find a answer to every possible inference
which ingenuity may suggest any more than the court is called on to seek
speculative explanations for conduct which on the face of it is incriminating’.

[161] It was submitted that it is uncontroverted that the premises are not secured
as there is no locked gate that would prevent outsiders from entry. On the evidence
of Ms O[...], Derick Oosthun and one other unknown man had entered the premises
on their own and walked to the Wendy House, which places at least two other
persons on the premises that evening. In fact, Derick Oosthun was present at least
twice. This as earlier stated is not cons istent with the accused evidence that Derick
Oosthun never came into the house. The accused’s evidence was that Derick
Oosthun waited in the car.

[162] Although it was contended that there are reasonable alternative possibilities
open namely, that someone may have entered the premises after the accused left or
may have been already hiding on the premises and that that person (or persons) is
responsible for killing the children, is in my view speculative.

[163] Furthermore, would the fact that D erick Oosthun was upset give him any
motive to harm the children of Ms A[...], and brutally so because Ms O[...] reneged
on her promise to have sex with him? The evidence in no way suggests that Derick
Oosthun was in any way confrontational. This is demons trated by the fact that he
sent the accused to Ms O[...] to do his bidding for him.

[164] The argument proffered that Derick Oosthun was drinking which could have
made him violent could also hold true for the accused, who was also drinking. On the
accused’s own version, he was drinking with his friends, which was corroborated by
Ms A[...] and Ms O[...]. This too is highly speculative and again, does not align with
the evidence viewed in its entirety.

[165] It is my view, that no motive in any on e of the alternative possibilities
proffered on behalf of the accused appears to be plausible if regard is to be had to
the targets , namely 2 innocent children. Why would any one of those person s
perpetrate the senseless killing of two helpless children. It is my view that these
alternatives, are not reasonable inferences. The matter of Reddy (supra) deals
succinctly with how inferences ought to be considered and emphasises that it cannot
be based on conjecture. Therefore, this finding is concretised by the testimony of Ms
A[...] that she heard Mrs Fienis inform Sgt Kobe when he arrived that her brother, the
accused before court, threw the baby through the window. Sgt Kobe, an independent
witness testified that when they arrived, a lady by the name of Maria Fienis said they
had to come in immediately as there was something wrong. When he enquired what
was wrong she told him that her brother threw the baby through the window. He
testified that he saw blood and the window broken and the ba by lying face down on
his stomach on the floor. And in further support, Ms O[...] heard Mrs Fienis shout “No
Derick, No”. The only inference to be drawn is therefore that it was none other than
the accused who threw C[...] through the window. And just to add, to the inescapable
conclusion derived at by this court that the accused before court committed these
horrendous acts, Mrs Fienis took the police officer, Sgt Kobe “to go and look how her
brother stabbed the children” according to the evidence of Ms O[...]. Even though
Mrs Fienis recanted, and was labelled by the defence as a non -witness, her
utterances to others implicating the accused before court, cannot be ignored.

Failure to call available witnesses

[166] It was contended that Maria Fienis’ husband Mr Ria an Fienis who resides
in the same home as her including Mr D errick Oosthun could have been called by
the State as witnesses because they were available and could have bolstered the
State’s case.

[167] The defence argued that the failure to call these witnesses calls for a
negative inference to be drawn; emphasising that the state as dominus litis bears the
onus to prove its case by securing all available evidence.

[168] According to the state, Riaan did not provide a statement. It was submit ted
that Derick Oosthun and Linda were not originally mention in the statements. It was
furthermore submitted that even if Riaan had made a statemen t, it would not have
taken the State’s case any further in light of the problems the State encountered with
Ms Maria Fienis.

[169] This court had a legal duty to ensu re that evidence was placed before it for
a just decision and invoked the provisions of Section 186 of Act 51 of 1977. The
court held the view , during the course of preparing judgment in this matter that the
interest of justice required that Derick Oosthun and Riaan Fienis be subpoenaed.
After recalling Sgt Mbovane it came to light that Derick Oosthun has passed away
and Riaan Fienis was unwilling to get involved in this matter.

[170] In S v Teixeira19 it was held that:


19 1980 (3) SA 755 AD.
‘… in the circumstances the failure by the State to call the other witness to
testify justified the inference that in State counsel's opinion his evidence might
possibly have given rise to contradictions which could have reflected
adversely on the credibility and reliability of the single witness.

[171] In applying Teixeira (supra), to the matter in casu , the question to be
answered would be whether the failure by the State to call Riaan Fienis to testify
would justify the inference that in State counsel’s opinion his evidence might possibly
have given rise to contradiction which could have reflected adve rsely on the
credibility and reliability of the single witness. In this matter Ms A[...] and Ms O[...] did
not observe anything, which means that the only other witness that may be
contradicted would be that of Mrs Fienis, whose credibility was already sha ken. In
my view, after establishing that Mr Riaan Fienis indicated that he did not wish to be
involved, I am not persuaded that his evidence would have been of assistance for a
just decision in this case.

[172] Consequently, I make no adverse inferen ce for the failure to call these
witnesses as the State is dominus litis and there appears to be a plausible reason
why these witnesses were not called.

No DNA evidence

[173] Counsel for the accused, submitted that although the accused’s clothing
was taken for analysis, there is no report to confirm the presence of blood transfer. It
does however bear mentioning that a grey hoody was retrieved from the roo m.
Although the Investigating, Officer, Sgt Mbovane testified that he leant that the hoody
belonged to the accused. T his evidence is hearsay and stands uncorroborated .
However, a grey hoody was found at the scene, and if inferential reasoning is
applied, it is possible that the hoody belonged to the accused because Ms A[...] and
Ms Orien ran out of the Wendy House. If on the theory proposed by the accused that
someone else perpetrated the crimes, then it is unlikely that the hoody would have
been left behind. These are all aspe cts that were not explored in any way by the
Prosecution. The court is however beholden to consider the evidence cumulatively.
In this regard, this court may consider this evidence as it was formally admitted by
the accused in terms of Section 220 of Act 51 of 1977. In this regard the accused
stated as follows:

‘…
8. The notes, fact and findings noted in the affidavit by ANUNCHIA LYNN
KOTZE dated 16 May 2019 are true and correct. EXHIBIT B refers. In
addition, I admit:

8.1. The notes, facts and findings noted in the ‘Key to Photos’
attached to the aforementioned affidavit of ANUNCHIA LYNN
KOTZE dated 14 May 2019 are true and correct.

8.2. The photo album, photographs 1 – 69, taken by ANUNCHIA
LYNN KOTZE on 1 May 2019 corr ectly depicts the crime scene
and the bodies of F[...] W[…] A[...] and C[...] A[…].

8.3 The noted facts and findings noted in the affidavit by
ANUNCHIA LYNN KOTZE dated 7 May 2019 are true and
correct….’

[174] The defence argued that Mr Daniels, from the Vredenburg Forensic
Pathology Laboratory testified that given the amount of blood on the scene that
anyone carrying the child would have had a high likelihood of transfer, Furthermore,
Dr Scherman testified that the assailant must have been in clo se proximity to the
children whist stabbing them as this would have le d to the transfer of blood in those
circumstances. It was argued that the S tate never placed in dispute what the
accused was wearing nor that he had changed his clothes and shoes after he left the
premises. It was submitted that it is highly likely that had the accused perpetrated the
murders there would have been blood on his clothes but none was found.

[175] Sergeant Mbovane was recalled to clarify whether the specimens collected
at the crime scene referenced in Exhibit “B” has been sent for analysis. It came to
light that the DNA results became available at a very late stage and it is apparent
that the outcome of the resu lt would not have assisted the S tate’s case. It must
however be born in mind that the absence of blood on the clothing the accused was
wearing does not exclude the possibility that the clothing worn by the accused was
changed. Whilst the outcome of the DNA may have been of assistance to the Court,
with or without the DNA evidence, there is sufficient collateral evidence to infer that it
could only have been the accu sed who committed these heinous acts as he had
motive and opportunity. DNA is not a prerequisite to prove that the accused was the
one who murdered F[...] and C[...].

Count 5 - Resisting Arrest

[176] According to the indictment it is alleged that the accused did unlawfully
resist or wilfully hinder or obstruct a member of the Service, to wit Constable Marcell
Fortuin in the exercise of his powers of the performance of his duties or functions or
did wilfully interfere with the said member or his uniform or equipment or part thereof,
to wit by refusing to open his shack upon request from the police official and or
threatening to hit the police official with a piece of metal.

Evaluation of the evidence on Count 5

[177] The submissions made by the State and Counsel for the accused during
the application for discharge in terms of Section 174, is worth restating. Counsel for
the accused contended that there were 3 police officers on the scene of arrest and 2
of the police officers did not corroborate the first police officer in material respects.
The police did not identify themselves as police officers because of the chaotic
scene. The accused’s version is that he was afraid and barricaded himself in th e
house. Counsel for the accused submitted that there is sufficient reasonable doubt
that there were police on the scene.

[178] Furthermore, it was submitted that there was no corroboration from his
colleagues that Sergeant Fortuin wrestled with the accused. It was furthermore
contended that the basis of the resisting arrest charge is the most important factor
which is to be taken into consideration. In further augmentation, it was mooted that if
it happened it would have been expected of them to hav e seen it and support the
evidence of Sergeant Fortuin.

[179] Additionally, Counsel for the accused highlighted the improbabilities insofar
as it relates to Sergeant Fortuin sticking his head in through the door. It was
submitted that there isn’t evi dence to secure a conviction as it would have been
expected that the witnesses would have been led on this important aspect and it
wasn’t done, further submitting that it is because the police could not corroborate it.

[180] Counsel for the State on the other hand submitted that the accused was
aware that the person at the door was a police officer as Sergeant Fortuin was in
dressed in full police uniform. According to Sergeant Mbovane, the accused look
through the small windo w of the door and should have been able to see that it was
police. The police had to use minimum force to effect the arrest. Counsel for the
State contended that the accused did not willingly surrender. It was furthermore
argued that his actions were telling. The accused knew that the police had arrived
and he refused them access to his house.

[181] It is common cause that the scene was chaotic and that there were
community members who needed to be controlled in order for the police to effect the
arrest of the accused and safely take him to police vehicle. According the Sergeant
Fortuin, he used his shoulder to try and get the door open. In fact, the evidence is
that he ran towards the door to force t he door open which caused the person behind
the door to fall over and move away from the door. It is also uncontroverted that the
accused, on his own version pushed the door to prevent access being gained. I t was
furthermore conceded that the police did not announce themselves. Counsel for the
accused submitted that there was no corroboration for the version of Sergeant
Fortuin.

[182] The test enunciated in the matter of S v Bruiners en Anders (supra) as
earlier referenced explicitly sets out what the court is to have regard to when the
evidence of witnesses differs in respect of the same incident. The court is enjoined to
have regard to the evidence as a whole and evaluate such evidence in order to
establish whether such differences were sufficiently material to warrant the r ejection
of the State's version.

[183] Sergeant Fortuin was dressed in full police uniform. It may be so that
initially the accused was not aware that the police were at the d oor, but at some
point this awareness had to have shifted. Pepper spray had to be used as well as
force to open the door in order for the police to gain access to the house. On the
version put to Sergeant Fortuin, the accused let go of the door because of the
pepper spray that was used. The accused testimony was that he let go of the door
after what he describes as being teargas, was sprayed. The accused did not dispute
that pepper spray was used. On the accused own version, he refused to open his
door. The accused on his own version corroborates the version of Sergeant Fortuin.

[184] The testimony of Sergeant Fortuin was tha t the accused almost struck him
with an iron pole. The accused denied having an object in his hand as per the
testimony of Sgt Fortuin. It was argued that it is improbable that police officers would
have poked their head through a hole and subject themselv es to danger. This may
not have been a wise thing for the Police Officer to have done, however, the situation
was such that the accused was pushing the door preventing the police from gaining
access to the Wendy House. Again, the court cannot view this inc ident in isolation,
but has to consider the evidence as a whole. If regard is to be had to the
probabilities, an iron object was wielded when the accused initially launched an
attack on Ms A[...] and Ms Orien. This court has already found that the accused
indeed wielded an iron object, which object was on a balance of probabilities still in
the Wendy House by the time the police arrived. This event, in my view , further
serves as corroboration in respect of the preceding events upon which counts 1 and
2 are centred, as set out in the indictment. I am satisfied that there is sufficient
collateral evidence to confirm that the accused was in possession of an iron object.
Again, whether it is a pole or described as something else does not disturb the
credible evidence already on record. This court accepts that there was indeed an
iron object in the Wendy House, which was further used in the commission of the
offence as set out in count 5 of the indictment.

[185] The accused denied that he wrestled with Sgt Fortuin as per his testimony
to which he responded “He is telling lies sir”. Sgt Fortuin pertinently stated that the
accused was trying to get away which he was trying to arrest him. He explicated that
they grabbed onto each other. Sergeant Fortuin explained what method he had to
apply to get the accused off -balance in order to subdue the accused to effect the
arrest. According to Sgt Fortuin, he was only subdued after he was taken off
balance which cause t he accused to fall. It is evident that the accused did not
surrender when he at that stage had to have known it was the police as Sgt Fortuin
was dressed in full police uniform. Sgt Fortuin could not have been mistaken for a
civilian at that stage.

[186] Sergeant Mbovane testified that the accused was looking through the small
window of the door, which infers that he should have realised the police were there
and nonetheless refused the police entrance to the house, had it not been for the
pepper spray that was used. The accused denied Sgt Mbovane’s testimony that he
peeped through the window of the door.

[187] The scene was by all accounts chaotic. It was contended that the
accused’s life was in danger from members of the public. A further consideration is
that there was a concession by the police that they did not announce themselves as
there was no time for th at. Whilst this may have been so in the beginning, at some
point the accused must have realised that police were trying to get into the We ndy
House to effect his arrest, as earlier stated. If on the accused’s version Sgt Fortuin’s
firearm was drawn, which was denied by Sgt Fortuin, why did the accused not
surrender. The accused’s version was “The policeman then pushed open the door
and he told me to hands-up”.

[188] It is apposite to mention that Sgt Joubert explained that Sgt Fortuin and Sgt
Mbovane managed to get the suspect under control and place him under arrest. This
presupposes that the accused did not willingly co -operate. There was no cross -
examination by the defence of this witness.

[189] On a conspectus of the evidence, this court rejects the accused’s
suggestion that he was una ware that he was confronted by Police O fficers. This
court finds that the accused hindered Sgt Fortuin in the exercise of his powers of the
performance of his duties or functions and wilfully interfered with the said member by
refusing to open his shack upon request from the police official and threatened to hit
the police official with a piece of metal as set per the indictment.

Failure by Prosecutor to put the state version to the accused

[190] The court was referred to the matter of Tuta v The State 20 where the
Constitutional Court held that ‘[t]he prosecution must put its case to an accused. A
failure to do so, or to do so sufficiently, will have a bearing upon the trial court’s
assessment of the evidence led at trial.’ The facts of this matter is however
distinguishable as the intervention of which the applicant complained about in the
Tuta matter, was the curtailment of the prosecution’s cross -examination of the
applicant. This curtailment was what the Constitutional Court referred as a ‘ disability
placed upon the prosecution. The prosecution sought to put its case to the applicant
but was prevented further from doing so.’ 21 It is apparent that the trial judge
intervened during cross -examination. Of seminal importance is that the interference
would have an effect of the assessment of all the evidence before the trial court.
The Constitutional Court held that ‘Such an assessment amounts to an appeal on a
question of fact, a matter outside the jurisdicti on of this Court.’ 22 Emphasis was
however placed on the trite legal position that the state must discharge its burden of
proof.

[191] In casu the defence argued that the Prosecutor failed during cross -
examination to put to the accuse d that he murdered the children, which was
submitted to be a material omission because the version of the state was not put. It
was furthermore argued that the prosecutor did not put it to the accused that it could
only have been him who murdered the child ren. Counsel for the accused contended
that in light of the Prosecutors vast experience that this was not done out of
negligence or lack of ability, but because the Prosecutor in good conscience and in
the best traditions of his office could not put a vers ion when he was aware that he
did not establish the evidence. It was argued that the Prosecutor’s “failure” to do so

20 (CCT 308/20) [2022] ZACC para 33; See also Small v Smith 1954 (3) SA 434 (SWA) at 434E -G,
where Claassen J held ‘It is my o pinion, elementary and standard practice for a party to put to each
opposing witness so much of his own case or defence as concerns the witness and if need be to
inform hi, if he has not been given notice thereof, that other witnesses will contradict him, so as to
give him fair warning and an opportunity of explaining the contradiction and of defending his own
character. It is grossly unfair and improper to let a witness’ evidence go unchallenged in cross -
examination and afterwards argue that he must be disbelieved.’.
21 Ibid, para 33.
22 Ibid, para 33.
amounts to a tacit concession that the state had failed to make a case against the
accused.

[192] It is interesting that the Defence argued that the Prosecution did not put its
case to the accused when the defence did it while leading the accused during his
evidence in chief. These are some of the q uestions that were put to the accused by
his Counsel while leading him in evidence in chief:

(a) F[...] said you had a crowbar in your hand at the time of the argument;

(b) C[...] said it was an iron used for fire place;

(c) Did you have such an object in your hand;

(d) Ms O[...] said you hit C[...] on the head with a beer bottle;

(e) Testimony was that there was a wrestling with F[...];

(f) Did you wrestle with C[...];

(g) Did you have any motive to kill the children (my emphasis);

(h) The testimony was that you looked through the window;

(i) You had a hollow pole;

(j) Allegation is that you wrestled with police officer;

(k) You said you feel you can kill her, F[...] and C[...] (my emphasis);

(l) When you knocked on the door, Riaan opened the door, where were
the children;

(m) What was the state of the children?

[193] It is my view that the State need not have put the same questions to the
accused which were already asked and answered , in anticipation of cross -
examination, when the accused’s evidence in chief was led. I therefore do not agree
with the Defence submission that the Prosecutor’s “failure” to do so a mounts to a
tacit concession that the state had failed to make a case against the accused. In my
view, this reasoning is a far-stretch and baseless . In any event, the accused’s
defence is a bare denial, save for the admissions made by him in terms of Section
220 of the CPA . In R v De Villiers 23 it was held that a Court should not consider
each circumstance in isolation and draw inferences from each single circumstance.
The onus on the State is not to prove that each separate item of evidence is
inconsistent with the innocence of the accused, but that taken as a whole, the
evidence is beyond reasonable doubt inconsistent with such innocence.

Evaluation of accused’s version

[194] In the matter of R v Difford 24, the court held that:

‘…It is not disputed on behalf of the defence, that in the absence of some
explanation, the court would be entitled to convict the accused. It is not a
question of throwing any onus on the accused, but in these circumstances, it
would be a conclusion which t he court would draw, if no explanation were
given. It is equally clear, that no onus rest on the accused to convince the
court of any explanation to be improbable, the court is not entitled to convict,
unless it is satisfied, not only, that the explanation is improbable, but beyond
any reasonable doubt, it is false. If there is any reasonable possibility of his
explanation being true, then he is entitled to be acquitted.’

[195] The accused’s version is one of a blanket denial of all the allegations, s ave
for admitting to common assault in respect of Ms A[...] and admission in terms of
Section 220 as previously stated. It is trite that t here is no onus on the accused to
prove the truthfulness of any explanation which he gives or to convince the Court

23 1944 AD 493 at 508 – 9.
24 1937 AH on page 373.
that he is innocent. Any reasonable doubt regarding his guilt must be afforded to the
accused.25 The test has been succinctly enunciated in S v Jaffer 26 where the Court
held:

“The test is whether there is a reasonable possibility that the accused’s
evidence may be true. . . the court does not have to believe the accused’ s,
still less does it have to believe it. It is sufficient if the court thinks that there is
a reasonable possibility that it might be substantially true.”

[196] In S v Kubeka 1982 (1) SA 534 (W) at 537 F-H, the Court held in regard to
the version of the accused:

‘Whether I subjectively disbelieved him is, however, not the test. I need not
even reject the State case in order to acquit him. . . I am bound to acquit him
if there exists a reasonable possibility that his evidence may be true. Such is
the nature of the onus on the State.’

[197] The accused elected not to disclose the basis of his defence, which is his
right to do because no onus rests on him to prove his inn ocence. However, when as
in this case, an alibi defence is put up, it would have been expected that the accused
would immediately at the time of his arrest inform the police of his alibi so that they
could follow it up. It is only during the course of the hearing that his version was
disclosed, namely that he did not murder F[...] and C[...] and that he left the property
and spent time at Linda’s house before returning to his place of residence.

[198] The first time that the alibi defence is introduced is when it was put to Ms
A[...]

(a) “Accused denies that he attempted to threaten your children”

(b) “He says he has no motive to kill or injure them because he loved
them”

25 S v Jochems 1991 (1) SACR 208 (A) and S v V 2000 (1) SACR 453 (SCA)
26 1988 (2) SA 84 (C)

(c) “My client does not know who attacked your children because once he
left the premises and until he returned anyone could have come onto the
premises”

[199] It is trite law that where an alibi is raised there is no burden on the accused
to prove his alibi. The onus is on the state to prove his alibi is false. The alibi is to be
considered in the light of all the evidence in the case. In Thebus & Another v The
State27 the central issue raised by the appeal is whether an adverse inference may
be may be drawn from a failure to disclose an alibi prior to trial. The court held that
in this regard, three questions arise being whether it is permissible to: (a) draw an
adverse inference of guilt from the pre -trial silence of an accused, (b) draw an
inference on the credibility of the accused from the pre -trial silence and (c) cross -
examine the accused on the failure to disclose an alibi timeously, thus taking into
account his or her response.

[200] The accused was never challenged about his failure to disclose an alibi
timeously and therefore the court does not have the benefit of hearing his response
in this regard. However, based on the earlier finding of this court tha t it was the
accused who committed the acts of murder on F[...] and C[...] prior to him exiting the
premises. W here he ultimately went, is in my view, of no consequence . The
inference that this court draws from the proven facts is that the accused’s exit from
the property was not to look for Ms A[...], but to remove himself from the crime scene
and return later so as to create an alibi for himself. He makes no exculpatory
statement to the pol ice to exonerate himself, instead, his alibi is proffered during
court proceedings, years after the incident which is hardly sufficient time for the state
or police to follow up or investigate the alibi. On this basis alone, the accused’s
version falls to be rejected with the contempt it deserves.

[201] It is however apposite to mention that although Ms O[...] confirms that the
accused was at Linda’s house, this had to have been based on hearsay evidence
and cannot serve to corroborate the accused’s version in this regard. There is no

27 2003 (2) SACR 319 (CC).
dispute that the accused walked to Linda’s house and returned later. The accused
however disputes that he saw a police vehicle passing him. Counsel for the accused
argued that Constable Fortuin’ s (erroneously noted in the heads of argument as it
was Constable Kobe who testified about seemingly seeing the accused), testimony
that he had seen the accused in the street cannot be relied on for the following
reasons:

(a) He may have seen the accused’s brother Troy;

(b) He was influenced afterwards;

(c) He conceded that it could have been the accused’s brother.

[202] Constable Kobe did not mention that the man that they drove past was the
accused. He stated that he testified as he recorded the events in his statement. He
furthermore indicated that he only made the connection after the accused was
brought into the polic e station, bearing a stark resemblance to Troy, who happened
to be the accused’s brother. He testified that in 2012, he was in a relationship with
the sister of Troy’s wife.

[203] The version of the accused is that it was not him and that he left th e
children unattended, after allegedly alerting Riaan that he was leaving. Counsel for
the accused challenged the accuracy of Constable Kobe’s connection between the
person they had past while they were on their way to the scene on the basis that it
was not mentioned by Constable Kobe in his evidence in chief and because of the
distinct differences between the accused and Troy pointed out by the defence such
as, Troy being older, balding and taller than the accused. Troy is more stout than the
accused and t he accused has tattoos and Troy not having tattoos. Constable Kobe
testified that the accused was also fatter at the time. According to Constable Kobe,
the resemblance was so similar that when he saw Troy after the arrest of the
accused, he stopped to ask whether it was the ac cused who was already released
and discovered that it was Troy. It was put Constable Kobe that the person he
passed on the way to the scene could have been Troy and he conceded that it was
possible. Initially when the accused was arres ted he thought it was Troy and was
informed by Sgt Franklin that it was in fact Troy’s brother that was arrested.

[204] On court’s question in clarification it came to light that Constable Kobe was
able to take a good look at his face because they we re not able to travel to fast on
that road because there are speed humps and the street is well lit.

[205] The Court allowed Counsel for the defence to ask a question he omitted to
ask in evidence in chief and allowed State to ask questions if necess ary which
wasn’t done. It was put to the accused that the Police Officer testified that they drove
past him while they were on their way to the house. He denied that there was any
police van that he walked past.

[206] Counsel for the defence argued that a cautionary approach must be applied
to Constable Fortuin’s “Kobe” identification by his own testimony in light of the
opportunity for observation, that his mind was elsewhere and he was later influence
which makes all these factors taken together re ndering his identification as
unreliable.

[207] I am not satisfied that the identification of the person who was walking has
been sufficiently proven. In any event, the evidence of Constable Kobe does not
further the state’s case in this regard, as there is no dispute that the accused walked
to Linda’s house and returned to his Wendy House later. Ms O[...] at some point
during her testimony also concede that the accused had been to Linda’ s house,
although this is purely base d on information after the fact as earlier stated.
Therefore, nothing really turns on whether Constable Kobe drove past the accused
or not.

Letter written by the accused

[208] I now deal with the letter written by the accused to the Ms A[...]’ mother
expressing his love and concern about Ms A[...]. In the letter, t he accused
acknowledges that he caused her deep hurt. He goes further to say he will ask her
(Ms A[...]) for her forgiveness when he sees her again. I t is apparent that he wanted
a face to face opportunity to see Ms A[...] so that he could answer questions she
may have for him.

[209] The accused was cross -examined concerning Exhibit C, being a letter
penned by himself. He testified that he could not remember the date he wrote the
letter. He stated that it was at the time when he was still at Malmesbury prison. He
wrote the letter after receiving a visit from Ms A[...]’ mother. He expressed surprise
about the visit. When asked about the content of the letter he stated he was only
referring to the things that happened. He denied that he put the letter as if he was
the cause of what happen ed to which he responded – “I am expressing I am sad
about what happened – not that I caused it”. When asked about what he was going
to ask her he responded “if she came to me I would have asked her who else was in
the shack at the time when I wasn’t there on the 1 st of May because Derick and
Boeta was there and he wasn’t there – she never spoke about that”

[210] This court is acutely aware that this letter cannot be regarded as an
admission or confession, however, I am enjoined to consider the cumula tive effect of
all the evidence when dealing with circumstantial evidence. The approach to be
applied is not that each separate item of evidence is inconsistent with innocence of
the accused, but only evidence taken as a whole is beyond reasonable doubt
inconsistent with such evidence.

Discussion

[211] All the state witnesses made a good impression on the court. Court
observed that the Ms A[...] became emotional during her testimony. Whilst trying to
remain strong, her eyes welled up with tears as she recounted the events of that
night. C[...] was very nervous. The court observed the following gestures, namely
that she rubbed hands together, gras ped / clasped hands, slight tremble in voice,
nervous shaking , rubbing motion on upper thigh, she rubbed her forehead and
rubbed stomach nervously. She became very emotional when she started speaking
about the incident to the extent that the court had to adjourn to give her an
opportunity to compose herself.

[212] Ms A[...] remained steadfast that the version of events as she testified
happened even when it was put to her that Counsel for the Defence wil l argue that it
did not happen and the suggestion made that Ms O[...]’s version was a bid to cast
suspicion that the accused was the one who threw C[...] through the window.

[213] Both Ms A[...] and Ms O[...] testified in a clearly and logically and were able
to give a chronological exposition of the events. I find that these witnesses were
honest witnesses. They could have exaggerated their account of what happened. Ms
A[...] for examples informed th e court that she was not assaulted, when she could
easily have done so. It was put to Ms O[...] that Ms A[...] never told the court that the
accused hit her with the iron, to which she responded, “I only told what I saw”.

[214] The fact that Ms A[...] did not see the accused hit C[...] with the beer bottle
is in my view, a demonstration of her honesty. The independent Post Mortem report
bear this out. Ms A[...] did not need to have seen this for it to have happened. As
earlier st ated, the possibility that C[...] was struck with the beer bottle cannot be
excluded as there is no disputing that the injury to C[...]’s head was caused by blunt
force trauma. Ms A[...] and Ms O[...] did not come to court to fabricate a story against
the accused. They came to court to tell the court what they experienced and
observed and cannot be faulted for the discrepancies in their testimony which
demonstrates their independent recollection of the events.

[215] The accused did not make a good im pression on the court. He didn’t want
the mother of Ms A[...] to be in court. On the first day of the proceedings he pulled up
the buff he was wearing to where only his eyes were showing.

[216] There are a number of improbabilities in the accused’s version, some of
which have already been dealt with earlier in this judgment and some which ma y be
worth reiterating. A child of 18 months and 3 years old respectively, in the next room
right next to the kitchen where the arguing allegedly happened, would most certainly
not have slept through this commotion. If the level of the arguing woke Mrs Fienis up
who was asleep in the main house, then it is highly probable that the children who
were in the next room according to the accused, would have woken up because of
the commotion.

[217] The evidence of Ms O[...] was that the accused hit C[...] with a beer bottle
over his head. When she returned to fetch her child, C[...] was on the floor. Surely
have been crying especially if regard is to be had of the nature and extent of the
injuries to his head as recorded in the Post Mortem report.

[218] The accused evidently, showed no compassion towards C[...] who was on
the floor as on his version, he was standing outside and then went to inform Riaan
that he was leaving. On his version, he never checked to see if the children were
okay who on his ve rsion were inside the Wendy House. During cross -examination
the accused was asked: “It was night – were you not concerned about their safety
and take them to the main house? To which he responded that he did not think about
that at that moment.

[219] The testimony of Ms A[...] was that while she was in hiding at Maria Fienis’s
house, she heard F[...] crying and then the crying stopped. The accused says he
stood outside the shack for 5 – 10 minutes. Why did he not console the children if he
claims to h ave been that loving, caring father figure? Again, according to Ms O[...],
the accused returned to go inside the Wendy house. The 5 – 10 minutes’ window
period of which the accused makes mention, in my view accounts for the time it took
for the accused to harm the children, knocked on the door of the main house and
before exiting the property thereafter propelling C[...] through the glass window.

[220] The accused stated that he went to the main house to enquire about Ms
A[...]. His brother -in-law Riaan said she was not there. He then informed Riaan that
he will look for her whereabouts. The accused stated that he took a walk down the
street. If the accused was concerned about Ms A […]’s whereabouts, why does he
not go to her parent’s house which would have been an obvious place to enquire.
After all, the accused was no stranger to her father as they were friends and he
could have asked them to assist him to find her; that is if he was genuinely
concerned. Instead, the accused stated that he went to Der ick Oosthun’s house and
when he arrived there he noticed that the car was not there so he went to Hopland,
to Linda’s house where he was looking for Bronwyn. In my view, it is improbable that
he would walk the streets at that time of the morning lookin g for Bronwyn. Yet, he
testified that he left the premises to look for Ms A[...] because Riaan told him that she
was not there after he enquired ab out her whereabouts. It seems as though he
completely forgot about looking for Ms A[...] as earlier stated.

[221] The accused explanation was that he and Bronwyn had made plans to
meet earlier. Given that it was in the early hours of the morning when he left, why
would he only then remember that he had arranged with Bronwyn earlier that he
should come and look for him at Linda’s house.

[222] What appears to be ominous is the fact that the accused got angry because
Ms O[...] wouldn’t go with Der ek Oosthun, knowing that Ms O[...] was engaged to
Bronwyn with whom he purportedly had plans to see later that very evening.

[223] Bronwyn and Ms O[...] have a daughter together. The daughter of Bronwyn
and Ms O[...], B[...], was there in the Wendy House with them when the accused got
angry about her changing her mind to go with Derick Oosthun. The threat uttered
according to Ms O[...] included all the children. Fortunately, she had the presence of
mind to turn back and fetch B[...], who may very wel l have been another fatality at
the hands of the accused.

[224] According to the version of the accused, he told Derick Oosthun that he
would go back to try and talk to Ms O[...]. The accused does not say what happened
to Mr Oosthun. Presumably he had to be waiting for an answer. Derick Oosthun,
disappears out of the narrative completely.

[225] The accused returned to his Wendy House just after 5am. Ms A[...] and the
children were not there. He was asked whether he went to the main house to enquire
about them, to which he responded “No I did not go again”. He exp lained he entered
the shack, closed the door and went to lay on his bed and he dozes off. He does not
look for them or enquire about Ms A[...] or the children’s whereabouts as his
testimony was that the Wendy House was empty. The children were not there, yet he
left the children, on his version, unattended.

[226] He had previously demonstrated a compassion for the children through
what he would do for them, support them, make bottles for them, change their
diapers. In respect of Ms A[...], he demonst rated his protection when her ex -
boyfriend tried to take her from him while they were on their way to her parents’
house. Yet, this night, he does not act like the protective, loving caring boyfriend and
father figure. Instead he sits chatting with Linda, then goes home and falls off to
sleep at a place that was home to Ms A[...] and the children and needless to say, a
crime scene created by himself just a few hours before he returned to the Wendy
house.

[227] As earlier stated he came back to the Wen dy House, makes no attempt to
establish where the children are. The only inference is that he already knew that the
children were no more, as C[...] was already thrown through the window and F[...]
was stabbed multiple times, with zero chance of survival.

[228] The crime scene photos depicted the bed where F[...] was found and the
pillow under which a knife, presumably the murder weapon was hidden. There are
visible blood stains on the bedding. Surely the accused should have noticed this. His
evidence was that when he arrived home after coming from Linda it was dark, he did
not notice anything untoward. In considering the probabilities, this version does not
appear plausible especially as none of the Police Officer testified that the room was
dark when they apprehended the accused. The accused must have seen the blood.

[229] It is furthermore apparent that the accused did not even ask the police why
he was being arrested. In my view, the reason is obvious. It’s because he already
knew why. He was arrested at a crime scene he had created. At his hands and of his
own doing.

Conclusion

[230] To borrow from the writers “It is folly to think that circumstantial evidence
means some sort of weak to less reliable evidence” 28 would be fitting for a matter

28 DT Zeffert AP Paizes & A St Skeen: The South African Law of Evidence at 94.
such as this. Just because no eye witness has seen what happened, does not mean
the missing pieces of the puzzle cannot be found when looking at the mosaic of
evidence that this court was presented with. It is trite that p roof beyond reasonable
doubt does not mean proof beyond a shadow of a doubt.29

[231] This court, being alive to the accused’ s fair trial rights must ultimately
ensure that justice will be done in the end result. After considering the evidence in its
totality, the court finds that the only inescapable inference that can be drawn is that it
was the accused who murdered F[...] and C[...], which is consistent with all the
proved facts. The court rejects the accused’s version with the contempt it deserves.
He wanted the court to believe that it could have b een someone else who
perpetrated these heinous and senseless acts on these two innocent , defenceless
children. I have no hesitation but to find that it is the accused who, aft er Ms O[...]’s
rejection of his f oreman, Derick Oosthun, t o have sex, and the sub sequent
interference of Ms A[...] took out his frustrations on the children by brutally stabbing
them, F[...] 19 times and C[...] 14 times. The only plausible reason why Ms A[...] no
longer heard F[...] crying was because the accused had taken care of F[...]’s crying
by ensuring she would never cry again. The accused also ensured that he delivered
the already fatally injured C[...], who in all probability was crying and needing his
mother, through the glass window, before exiting the property.

[232] Had it not been for Mrs Fienis’ intervention, more damage may have been
done as the accused made his intention plain that he would kill Ms A[...] and the
children and he did exactly that. Fortunately, Ms A[...] came away unscathed.

[233] After carefully considering all the evidence, I am satisfied that the state
succeeded to prove its case against the accused beyond a reasonable doubt in
respect of counts 1 on the competent verdict of assault with intent to do grievous
bodily harm, count 3, count 4 and count 5.

Verdict


29 S v Ntsela, Eksteen AJA, referring to Miller v Pensions [1947] 2 All ER 372 at 373.
[234] In the result:

1. Count 1 - attempted murder
Guilty on the competent verdict of assault with intent to do grievous
bodily harm.

2. Count 2 – attempted murder
The accused is acquitted

3. Count 3 – murder
Guilty, murder, read with the provisions of Section 51(1) of the Criminal
Law Amendment Act 105 of 1997.

4. Count 4 – murder
Guilty, murder, read with the provisions of Section 51(1) of the Criminal
Law Amendment Act 105 of 1997.

5. Count 5 – resisting arrest
Guilty as charged.


____________________________
P ANDREWS, AJ
Acting Judge of the High Court