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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: SS 54/2024
In the matter between:
THE STATE
And
N[…] K[…] Accused
JUDGMENT
Mdalana- Mayisela J
INTRODUCTION
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
_______________________ 10 March 2025
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[1] The accused is charged with murder of her newborn baby boy K[…] (“the deceased”),
read with section 51( 1) of the Criminal Law Amendment Act 105 of 1997, as amended (“the
CLAA”) . The state alleged that upon or about 3 March 2024 and at or near Fordsburg in the
district of Johannesburg Central , the accused did unlawfully and intentionally kill the deceased.
[2] The provisions of section 51( 1) read with Part I (a) (planned or premeditated murder)
and (b)( iii) (victim was a person under the age of eighteen years) of Schedule 2 of the CLAA
were explained to the accused before pleading to the charge of murder . She pleaded not guilt y
to murder and gave no plea explanation.
EVIDENCE
Exhibits [3] The following exhibits were admitted as evidence during the trial :
A - Admissions in terms of section 220 of Act 51 of 1977 (“the CPA”) ;
B1 - Affidavit in terms of section 212(4&8) of the CPA made by Dr Leonardo Mantanga;
B2 - Medico- legal autopsy report prepared by Dr LL Mantanga;
C - Affidavit made by Johan N[...] ;
D - Affidavit in terms of section 212(4) of the CPA made by Dr Tayla Sarah Ferguson;
E – 3 Photographs of the deceased taken by Dr TS Ferguson;
F - Clinical notes made by Dr TS Ferguson;
G - Photo album and key prepared by Sergeant Owen Moeketsi ;
H - Clinical notes made by Dr Dayna Ferguson;
I - Qualifications and experience document prepared by Dr Efrat Barnes ;
J - Referral report prepared by the social worker, Ms S P Papila;
K - Clinical notes made by Dr Ronwyn Stevens; and
L - Helen Joseph final Laboratory report for N […] K[…] (accused).
The witnesses
[4] To prove its case against the accused t he state called her boyfriend J[...] N[...] , Dr Tayla
Sarah Ferguson, Dr Dayna Jane Ferguson, Dr Efrat Barnes , Ms SP Papila and Dr Ronwyn
Stevens. Some of the state witnesses’ evidence was handed up by agreement between the
state and accused, and those witnesses were not called to testify. The accused testified in her
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defence. I have considered the evidence in totality. However, I do not intend to summarize the
evidence of the witnesses individually in this judgment because most of the material facts are
common cause.
The common cause facts
[5] The following facts are common cause, and/or not in dispute between the state
witnesses and accused:
[5.1] The identity of the deceased and that he is the accused’s late baby boy.
[5.2] The accused gave birth to the deceased on 3 March 2024 at home in Crown
Mine s.
[5.3] The deceased was healthy and normal at the time of his birth. He did not have any
congenital abnormalities. He had a height of 46 centimeters and a weight of 2305
grams which was an indication that he was a full-term baby. He was carried to at least
36 weeks gestation.
[5.4] The deceased was crying and breathing well at birth. The umbilical cord was not
wrapped around his neck.
[5.5] The placenta was not removed, and the umbilical cord was not clamped or cut at
home after the deceased was born.
[5.6] The accused’s boyfriend, J[...] N[...] whom she began dating from December 2023,
did not know that the accused was pregnant until the deceased was born.
[5.7] The accused was alone at home when the deceased was born, as well as when
J[...] went to look for an ambulance or car to take her and the deceased to hospital.
[5.8] J[...] organized a car and accompanied the accused and deceased to Rahima
Moosa Mother and Child hospital on 3 March 2024.
[5.9] The deceased was wrapped in a towel that had blood and covered with a blanket.
[5.10] The deceased was not crying and struggled to breathe inside the car on the way
to Rahima Moosa hospital.
[5.11] The accused was holding the deceased from birth at home until she handed him
over to Dr Dayna Ferguson in Rahima Moosa hospital , and nobody tried to harm him
during that time.
[5.12] The deceased arrived at Rahima Moosa hospital emergency department at about
19H50 and he was immediately taken to neonatal resuscitation area, placed under a
warmer and stimulated. A face mask was placed to give him oxygen. The placenta was
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removed. The umbilical cord was clamped, lifted away from the deceased, placed on a
thick maternity pad and then cut with a scalpel by the nurses in the presence of Dr
Dayna.
[5.13] Dr Dayna conducted the initial assessment of the deceased in the presence of
her senior, Dr Umer Thair. The deceased was observed to be cyanotic . He was making
respiratory effort but not saturating well. He was also hypothermic. He had signs of
respiratory distress. A laceration above the left clavicle was observed initially. When the
deceased was placed in position for supportive breaths and his neck extended, three
deep lacerations to the right anterior -lateral neck were noticed. The wounds were not
actively bleeding. Dr Thair took over airway breathing control and resus situation was
declared.
[5.14] When doctors Dayna and Thair ’s shift ended at 20H00 in the emergency
department, Dr Sarah Ferguson took over the resuscitation of the deceased and
proceeded to stabilize him. The deceased ’s lips were noted to be blue, he was gasping
and struggling to breathe. Dr Sarah examined the body of the deceased and when she
extended his neck , she noticed that he had multiple penetrating wounds to his neck.
The deceased’s trachea (breathing pipe), vocal cords, oesophagus (swallowing pipe)
and neck muscles were completely cut through and severed. As a result , the deceased
could not cry or swallow food and struggl ed to breathe. Dr Sarah managed to stabilize
the deceased by putting a breathing pipe in the neck through the actual wound of the windpipe. He was placed on a ventilator to help him breathe. The medication for pain
was administered and he was kept in the ICU.
[5.15] Dr Sarah completed a J88 and attached diagrams. She also took black and white,
and colour photographs of the deceased’s multiple injuries . She also took two video s
showing the deceased not crying, having multiple penetrating wounds in the neck, blood
stains and abnormal breathing with her phone. By agreement between the parties t he
videos were played during her testimony in court .
[5.16] She described t he injuries as extensive and not superficial cuts . The first wound
was a 4- centimeter by 4- centimeter laceration with the trachea exposed and the
sternocleidomastoid muscle severed in the right anterior neck triangle. This injury also
had surgical emphysema with an audible air leak or sucking chest wound. That means
there was air escaping from the chest into the tissue underneath the neck. The second wound was a 2- centimeter by 0,5- centimeter laceration to the anterior neck triangle.
The third wound was a 2- centimeter by 3- centimeter laceration on the right neck
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triangle. The fourth wound was a 3 centimeter by 2- centimeter laceration to the left
anterior neck triangle that was about 3- centimeters above the clavicle. All the wounds
were deep lacerations or incisions . They had sharp edges caused by a sharp object, for
example a knife or scalpel blade. She concluded that there were multiple deep
lacerations to the neck of the deceased in keeping with nonaccidental injuries.
[5.17] The deceased was transferred to Charlotte Maxeke Academic hospital which has
pediatric surgical expertise for further management. He was kept in the pediatric ICU.
Dr Efrat Barnes oversaw the treatment administered to the deceased by a team of
medical doctors. The head of the pediatric surgical team, Dr Mapunda performed a
surgery and repaired the oesophagus of the deceased. The ear, nose and throat
specialist repaired his trachea. The deceased’s condition remained critical until his
demise on 26 Apr il 2024 . He could not maintain blood pressure and pulse. He could not
breathe on his own. The signs of life were not present unless he was supported by machines. He was given inotropes drugs to support his heart and blood pressure. An
MRI scan was done, and it was found that he sustained a brain injury . Dr Barnes opined
that the deceased sustained an initial brain injury because of not having received
oxygen to the brain for a long period due to the loss of significant amount of blood and severed trachea. A tracheostomy (windpipe ) was inserted into the penetrating wound of
the neck perforating the trachea and oesophagus to help maintain his breathing and
oxygenating.
[5.19] Dr Leonardo Mantanga conducted a postmortem examination on the body of the deceased on 3 May 2024 and found the cause of death to be “unnatural causes: penetrating wound of the neck” .
[5.20] Dr Ronwyn Stevens examined the accused on 4 March 2024. She noted that the
uterus was well contracted. She had normal blood after delivery. Her heart sound was
normal. She was calm and cooperative. She was clinically stable.
Issues in dispute
[6] The following issues are in dispute:
[6.1] The identity of the person who inflicted multiple penetrating wounds in the neck of the deceased.
[6.2] Whether there was a new intervening act that broke the chain of causation.
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EVALUATION OF EVIDENCE
[7] It is trite law that the state bears the onus to prove the guilt of the accused beyond
reasonable doubt .1 The accused is entitled to her acquittal should her version be reasonably
possibly true .
[8] First, I deal with the issue of the identity of the perpetrator. It is common cause that the
state did not present direct evidence to prove the identity of the perpetrator. It relies on
circumstantial evidence. The court in Mashia v S
2 in dealing with circumstantial evidence
stated as follows:
“(47) Circumstantial evidence is sometimes described as that network of facts and circumstances that swirls around the accused. The court is called upon under such circumstances to determine whether or not those facts and circumstances justif ies the
court to infer what could have actually happened even though there is no direct evidence available. Simply put pieces of evidence, facts, documentary evidence, surrounding circumstances, exhibits, the conduct of an accused person, his reaction to questioning - be it by the prosecution or the police; all these and other relevant and
material aspects can conflate and confluence into a body of ascertainable facts and
evidence that can go a long way towards proving the guilt of an accused person,
despite the absence of direct evidence by witnesses to that effect.
(48) Such an exercise may sometimes come up with nothing implicating an accused
person. On the other hand, the circumstances may turn out to be such that a convincing story indeed ultimately shines through. The law does not demand that one should act upon certainties alone. In our lives, in our courts, in our thoughts, we do not always deal with certainties: we also act upon just and reasonable convictions founded upon just and reasonable or set grounds. The law asks for no more and the law demands no less. see: Ranzani Ndumalo v The State (Case N o 450/2008 [2009] ZASCA 113 .”
[9] In S v Reddy and Others
3 it was held as follows:
“In assessing the circumstantial evidence one needs to be careful not to approach such
evidence on a piece- meal basis and to subject each individual piece of evidence to a
1 R v Difford 1937 AD 37 7; R v Ndhlovu 1945 AD 369.
2 (41/1449/2005) [2013] ZAGPJHC 43 (7 March 2013).
3 1996 (2) SACR 1 (A) at 8 paragraph C -D.
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consideration whether it excludes the reasonable possibility that the explanation given
by the accused is true. The evidence needs to be considered in its totality. It is only then
that one can apply the oft -quoted dictum in R v Blom 1939 AD 188 at 202- 3, where
reference is made to two cardinal rules of logic which cannot be ignored. These are, firstly, that the inference sought to be drawn must be consistent with all the proved
facts, and secondly, the proved facts should be such ‘ that they exclude every
reasonable inference from them save the one that is sought to be drawn’ .”
[10] The state proved the following facts relevant to the issue of identity:
[10.1] The deceased was the accused’s newborn baby.
[10.2] The accused was alone in the shack when the deceased was born.
[10.3] The accused held the deceased from birth until he was handed over to Dr Dayna
at Rahima Moosa hospital, and nobody else held him during that time.
[10.4] The accused never lost sight of the deceased from birth until he was handed over
to Dr Dayna.
[10.5] The deceased’s multiple penetrating wounds were nonaccidental and were
inflicted intentionally. [10.6] When t he deceased was born hi s vocal cords, oesophagus and trachea were
normal . He was cryi ng and breathing normally. The umbilical cord was still attached but
it was not wrapped around his neck.
[10.7] J[...] left the deceased crying in the shack when he went to organize a car to take
the deceased and accused to hospital.
[10.8] When J[...] returned the deceased was not crying and he was wrapped in a towel
that had blood. He gave the accused a blanket to cover the deceased.
[10.9] When t he deceased was transported to Rahima Moosa hospital he was not
crying and was struggling to breathe.
[10.10] When he arrived at Rahima Moosa hospital he was taken to neonatal
resuscitation area where the doctors noticed multiple deep lacerations or penetrating
wounds within few minutes after his admission.
[10.11] Drs Sarah, Dayna and Barnes opined that the deceased was unable to cry
because his vocal cords were severed, and he was struggling to breathe because his
trachea was also severed.
[10.12] The accused informed doctors Sarah, Dayna and the social worker Papila that
she did not want this pregnancy.
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[10.13] The accused did not show any emotions in hospital when the doctors were
trying to save the deceased’s life. She did not enquire about the deceased’s health.
[10.14 ] I observed the accused in court. She did not show any emotions during the state
case and even when the two videos showing the deceased’s injuries were played.
[11] The accused applied for her discharge in terms of section 174 of the Criminal
Procedure Act 51 of 1977 at the end of the state case. I dismissed the application because I
believed that the common cause facts together with the above proven facts are sufficient to convict and require an explanation from the accused. The accused testified in her defence.
Her defence is a bare denial.
[12] It was argued on behalf of the accused that the breathing problem could have been
caused by the placenta and umbilical cord that were still attached. However, this was not put
to doctors Sarah, Dayna and Barnes for their comment. It was also not the accused’s testimony. The proven fact is that the umbilical cord was not wrapped around the deceased’s neck when he was born. The breathing problem persisted even after the placenta was
removed and the umbilical cord was cut. This argument is without substance because the
deceased was crying and breathing well when he was born. The accused and J[...] observed
the breathing problem when the deceased was inside the car on the way to Rahima Moosa hospital . The only reasonable inference consistent with these facts is that the breathing
problem w as caused by the injury to the trachea.
[13] Furthermore, it was argued that the injuries could have been inflicted by nurses when
they were cutting a cord with a scalpel, or the doctors when they were putting a windpipe. This
was not put to doctors Sarah and Dayna for their comment. It was also not the accused’s
testimony. The accused in her testimony denied inflicting the multiple wounds and stated that
she did not know how they were inflicted and by whom. This argument is also without
substance because the pediatrician initially inserted a breathing pipe orally and it was unsuccessful. Dr Sarah put a windpipe through a defect, that is in one of the multiple
penetrating wounds. She did not cut the deceased’s neck. Dr Dayna was present when the nurses cut the umbilical cord. She explained that it was clamped, lifted away from the deceased and placed on a thick maternity pad and then it was cut.
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[14] he accused lied to Dr D ayna about the deceased being removed from the shack after
birth by his father and grandmother and returned with a breathing problem. Although she
denied this in court, I have no reason to reject the testimony of Dr Dayna. This information was
noted in her clinical notes that she made during the interview with the accused. She was a
good witness. She did not exaggerate her evidence. [15] The accused also informed Dr Stevens during the interview that the deceased could
have been injured on the rough floor inside the shack. That is not probable because Drs Sarah
and Dayna described the injuries as deep lacerations or penetrating wounds with sharp edges
inflicted using a sharp object. They were not superficial wounds. The trachea, oesophagus and
vocal cords were cut into half.
[16] I observed all the witnesses and the accused during their testimonies. I found all the
state witnesses to be credible witnesses. They corroborated each other in material respects.
The few contradictions in their testimonies are not material. J[...] was also corroborated by the
accused in material respects.
[17] The accused manufactured her evidence during the trial. The version inconsistent with
her evidence was put to the state witnesses that as a caring mother she took the deceased to hospital because she observed at home that he had a breathing problem. She testified that she observed for the first time inside the car on the way to Rahima Moosa hospital that the deceased had a breathing problem. J[...] testified that he left the shack and went to organize a
car to take the deceased and accused to hospital because he was shocked after becoming aware that the accused gave birth at home, and he had never seen something like that before.
This version was not disputed by the accused when J[...] testified. There was no discussion
between J[...] and the accused about organizing a car. But during her testimony the accused
claimed that she was the one that advised J[...] to organize an ambulance or a car to take
them to hospital.
[18] The accused testified that she did not know that she was pregnant. She stated that the
liquid substance would come out of her breast s only when she was pregnant. J[...] stated in his
statement which was admitted as evidence in court that he started dating the accused from December 2023. In January 2024 while they were in bed, he touched the accused’s breast, and a liquid substance came out. He asked the accused what it was, and she answered that
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she always had a liquid substance coming out of her breasts and it was normal . It was at night ,
and he could not see if it was water or milk. Dr Stevens testified that considering that the
deceased was born at 36 weeks and weighed 2305 grams , it is highly unlikely that the
accused did not know that she was pregnan t. For these reasons, I reject the accused’s version
that she did not know that she was pregnant.
[19] In my view the only reasonable inference consistent with the above proven facts is that
when J[...] left the shack to organize a car to take the deceased and accused to Rahima
Moosa hospital, the accused inflicted the four penetrating wounds in the neck of the deceased
intentionally.
[20] It was argued that the postmortem report mentioned only 3 wounds and not four
wounds. Drs Sarah and Dayna observed the fresh four penetrating wounds during the examination of the deceased’s body on 3 March 2024. They described the nature of all four wounds, the positions where they were inflicted and their sizes. They were treating doctors.
Their evidence was not disputed. I accept their evidence in this regard. Furthermore, there is
no discrepancy between the postmortem and their evidence on the existence of the fatal penetrating wound to the neck that caused death.
[20] I now deal with the issue of the new intervening act. It was not the accused’s testimony
that there was a new intervening act that broke a cause of causation of death. However, it was argued on her behalf that an obstruction in the tracheostomy medical device inserted into the
open wound to maintain airway ventilation which culminated in terminal hypoxic brain injury due to oxygen deprivation was an intervening act which broke a causation. [21] In MEC for Health Eastern Cape v Mkhitha
4, it was held as follows :
“It is trite that causation involves two distinct enquiries : factual and legal causation.
Generally, the e nquiry as to factual causation is whether, but for the defendant ’s
wrongful act, the plaintiff would not have sustained the loss in question; whether a
postulated cause can be identified is a causa sine qua non of the loss. The second
enquiry , legal causation, is whether the wrongful act is linked sufficiently closely or
directly to the loss for legal liability to ensue; or whether the loss is too remote.”
4 1221/ 2015 [2016] ZASCA 176 (26 November 2016) .
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[22] The penetrating wounds were repaired surgically and some healed. However, Dr
Barnes who oversaw the treatment of the deceased until he died, testified that the deceased’s
condition was critical and he was kept alive by the machines until his death. He could not
breathe on his own. He died as a result of being stabbed repeatedly in his neck. She agreed
with Dr Mantanga that the cause of death was the penetrating wound of the neck. The
accused admitted the cause of death in the section 220 admissions.
[23] I find that the hypoxic brain injury did not break a chain of causation. The penetrating
wound of the neck inflicted by the accused is linked sufficiently closely to the death of the deceased. It is not too remote. The penetrating wound of the neck was a direct cause of death.
I reject the argument by defence that the hypoxic brain injury broke the chain of causation.
ORDER
[..] Accordingly, t he following order is made:
1. The accused is found guilty of murder read with section 51(1) and Part I of Schedule 2
of the Criminal Law Amendment Act 105 of 1997, as amended.
MMP Mdalana- Mayisela
Judge of the High Court
Gauteng Division,
Johannesburg
Date of delivery: 10 March 2024
Appearances:
On behalf of the State : Adv C Ryan
Instructed by: National Prosecuting Authority
On behalf of the Accused : Ms L Qoqo
Instructed by: Legal Aid SA