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[2014] ZAWCHC 145
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Helm v S (A119/2012) [2014] ZAWCHC 145; 2015 (1) SACR 550 (WCC) (17 September 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: A119/2012
DATE:
17 SEPTEMBER 2014
In
the matter between:
MONICA
HELM
..................................................
Applicant
And
THE
STATE
......................................................
Respondent
JUDGMENT
DELIVERED
ON 17 SEPTEMBER 2014
GAMBLE,
J:
INTRODUCTION
[1]
The Appellant,
Ms Monica Helm (“the Accused”), conducted a crèche
business in Somerset West providing much needed
homecare for infants
and toddlers. The business came to an abrupt halt on 12
December 2007 when a contingent of local police
officers descended on
her home where she conducted the “
Kinderland
”
Day Care Centre.
[2]
The
police raid, conducted in terms of a search warrant duly issued by
the local Magistrate, followed upon allegations by the Accused’s
domestic worker – cum-crèche assistant (Angelina Carolus
(“Carolus”)) that the Accused had been administering
noxious substances to the children in order that they would sleep
during the day. The Accused, aged 61 at the time, was arrested
and after her release on bail was eventually arraigned before the
Regional Court, Somerset West, on 12 May 2009 on eight counts
of
assault with intent to do grievous bodily harm (counts 1-8) and one
count of contravening section 30(2) of the erstwhile Childcare
Act,
74 of 1983
[1]
, in that she had
taken up children in a place of care without the place being properly
registered (count 9).
[3]
In the
alternative to each charge of assault with intent to do grievous
bodily harm (assault GBH), the Accused was charged with
a
contravention of section 50(3) of the Childcare Act, namely that she
had maltreated the child in question.
[4]
The
Accused pleaded not guilty to all the charges. In respect of
counts 1 to 8 her defence was a bare denial that she had
assaulted
any of the named children by administering to them any unnecessary
medication.
[2]
In respect
of count 9 the Accused alleged that her facility was registered and
if it was established that it was not so registered,
that she lacked
the necessary intention to commit the offence.
[5]
The trial was a
protracted affair and eventually the Accused was convicted two years
later on 16 May 2011 of the main count on charges
1- 8 as well as
count 9. On 12 September 2011 the Accused was sentenced to five
years direct imprisonment under section 276(1)(i)
of the Criminal
Procedure Act, 51 of 1977 (“the CPA”) on counts 1-8, all
of which were taken as one for purposes of
sentence, and to a fine of
R1 000.00 or six months imprisonment on count 9.
[6]
The effect of
the sentence on counts 1-8 was that the Accused would have had to
spend a minimum of 10 months in jail before being
considered for
release on correctional supervision. An application for leave
to appeal was turned down, there and then, but
the Accused was
released on bail pending a petition to this Court. That
petition was granted in respect of both conviction
and sentence on
counts 1-8 only by this Court on 14 November 2011.
[7]
On appeal before
us the Accused was represented by
Adv J
A van der Merwe
and the State by
Adv
E Kortje
. We are indebted to Counsel
for the helpful heads of argument and the frankness with which their
respective submissions were advanced
on appeal.
OVERVIEW OF THE
EVIDENCE BEFORE THE REGIONAL COURT
[8]
Of the 27
witnesses who testified for the State, the principal witness was
Carolus. She explained how she had come to be employed
by the
Accused and her husband in October 2004 and went on to tell the court
how her engagement originally as a domestic worker
morphed into an
assistant at Kinderland.
[9]
Carolus was
regarded by the State as a potential accomplice and she was
accordingly warned in terms of section 204 of the CPA.
The
reason for this was because the gist of her evidence was that she had
been regularly instructed by the Accused to orally administer
a
potion to the children which the Accused had prepared by grinding
tablets with a spoon and dissolving them in water.
[10]
Carolus
explained how the Accused had become increasingly stressed and
irritated with the children at the crèche, and how
the almost
daily administration of the potion to them had put them to sleep,
thus enabling the Accused to get on with Bible study
and other
preferred activities at home.
[11]
Then there was
the testimony of several anxious parents who related to the Court
a
quo
their lay observations regarding
the health and welfare of their off-spring.
[12]
The State also
called several police officers who had participated in the raid on
the Accused’s home and purported to secure
samples of
substances found in the house for subsequent forensic analysis.
[13]
Finally, there
were a number of expert witnesses who testified regarding the
pharmacological effects of certain of the supposed
substances
involved, the forensic analysis of the samples seized by the police,
the calibration and accuracy of certain of the
machines used in the
analysis of the samples and the condition of certain of the children
upon medical examination.
[14]
The Accused
testified in her own defence and adduced the expert testimony of the
former head of the Department of Health’s
Forensic Laboratories
in Pretoria.
[15]
After the
conclusion of argument, the Regional Magistrate decided to call two
witnesses of her own, both of whom were required to
testify on issues
relating to the forensic testing of the samples allegedly procured by
the police during the raid.
[16]
In light of the
view that I take of the matter, it is not necessary to comment on
each and every witness, or the entirety of the
technical evidence.
I shall highlight certain limited issues which, in my view, are
sufficient for a just decision in this
matter on appeal.
ANGELINA CAROLUS
[17]
Carolus said
that she was recruited by the Accused at the former’s hometown
of Springbok in 2004. She testified how
their working
relationship slowly deteriorated over the years after a satisfactory
start. The Accused, it seems, was obsessed
with personal
hygiene and security, and began to doubt Carolus’ honesty,
believing that items were disappearing from her
wardrobe.
Eventually the Accused resorted to locking her cupboards and wearing
the keys therefor around her neck.
[18]
Carolus
testified how the Accused became increasingly nervous and how she
resorted to placating the young children who increasingly
became a
source of irritation to her. Ordinarily, the children would be
dropped off by their parents between 07h00 and 08h00
every day and
fetched at around lunchtime, or early afternoon. At around
09h00 to 10h00 the children were given a liquid
mixture consisting of
ground tablets and water, and then put down to rest in the garage
adjacent to the house, which had been renovated
to serve as a
nursery. According to Carolus, this was a daily practice.
[19]
Carolus said
that she became increasingly concerned with what was happening, but
felt powerless to do anything: as a live-in
domestic worker
whose family resided far away, she was reluctant to compromise her
much sought-after employment.
[20]
It seems as if
an opportunity to unburden herself presented when Carolus bumped into
Ms C at a nearby supermarket on Monday, 26
November 2007. Ms C
is the mother of JC, the subject of charge 2. A discussion
ensued in which Carolus revealed to
Ms C what the Accused was
allegedly up to. This discussion resulted in Ms C withdrawing
her son from Kinderland immediately.
[21]
Word seems to
have spread fairly quickly and on Wednesday, 28 November 2007,
Carolus went to the supermarket where she met up with
Ms H, the
mother of MH and the subject of charge 1. After hearing of the
alleged administration of a secret potion by the
Accused, Ms H took
proactive steps to obtain certainty as to what was taking place.
[22]
By arrangement
with Carolus she put a pill bottle in her three year old son’s
school bag and asked Carolus to ensure that
a sample of the potion
was placed therein.
[23]
Carolus
evidently complied with the request the following day and as a
consequence thereof, Ms H was able to take a sample to the
local
pathology laboratory (Pathcare) for analysis, together with a urine
sample of her son. The results of this analysis
gave Ms H cause
for concern and on 3 December 2007 she reported the matter to the
local police. This report led ultimately
to the police raid the
following week.
[24]
On Monday, 10
December 2007, and by prior arrangement, Carolus handed a sample of
the potion allegedly then in use to the erstwhile
investigating
officer in the matter, Inspector September.
[25]
In her
evidence-in-chief Carolus spoke about the breakdown of her employment
relationship with Mr & Ms Helm. She said
that matters came
to a head on Monday, 26 November 2007, when she and the Helms
discussed her complaint that she was not coping
with her domestic
duties and the day-care at the crèche, and her earlier request
for a raise in light of the long and arduous
hours she was required
to work.
[26]
In her
evidence-in-chief Carolus testified that the upshot of this
discussion was that she gave the Helms notice of her intention
to
leave her employment at the end of January 2008. Under
cross-examination, however, a very different picture emerged.
Carolus ultimately conceded that she had been confronted by her
employers regarding certain alleged incidents which they regarded
as
unacceptable. These included:
26.1
accusations of theft;
26.2
the fact that she had purchased medication on the Helms pharmacy
account without their authorisation;
26.3
a complaint that she had assaulted certain of the children; and
26.4
an allegation that she had sprayed down a toddler with a hose in the
garden.
[27]
Having initially
denied that she was requested to acknowledge receipt of a written
warning from her employers, Carolus eventually
conceded the
correctness of the allegation and said that this incident had angered
her. She ultimately conceded, too, that
she suffered from
stress, that she had difficulty in handling children and that she was
prone to outbursts of anger: on one
occasion she had evidently
flung a microwave proof plate across the kitchen.
[28]
I agree with
Mr
Van der Merwe
that Carolus’
evidence was riddled with improbabilities. For example, she was
unable to describe the colour of the
tablets used in the potion,
despite her regular involvement in the preparation and/or
administration thereof. Then there
is the fact that,
notwithstanding her revelation to Ms C on 27 November 2007, she
continued to administer the potion to the children.
Further,
she claimed that she had never had an opportunity to inform any of
the parents of what the Accused was up to, while she
conceded that
the Accused often overslept and that it was she (Carolus) who then
received the children from the parents at the
front door of the
house. And then, she testified that the Accused had
administered anything from five to 15 tablespoons (i.e.
75 - 225ml)
of the mixture to each child.
[29]
Carolus was
unable to describe any adverse effects which the potion had on the
children other than that they sometimes slept for
several hours.
Certainly, she confirmed that none of the children were obviously
sick as a result of the ingestion thereof.
[30]
A critical
aspect of her evidence related to the day of the police raid, which
occurred sometime around 10h00. Carolus testified
that the
children had already been dosed by that time and that the remainder
of the potion had been left in a container which stood
next to the
microwave in the kitchen – its usual place. She was
adamant that the children had been administered quantities
of the
liquid found in the container by the police.
[31]
Yet, as will be
seen more fully hereunder, when the contents of the so-called
“
mayonnaise jar
”
were later analysed by the forensic laboratories, it was striking
that there was little, if any, correlation between the
various
compounds therein, and samples of the children’s’ urine
and blood which had been gathered for comparative purposes.
[32]
When her
evidence is considered against that background it is quite likely
that her meeting with Ms C at the supermarket on 27 November
2007 was
not serendipitous, but rather by design, given that Carolus had been
served with notice of termination of her employment
the previous day.
[33]
I agree with
Mr
Van der Merwe’s
criticism of the
findings by the court
a quo
that Carolus’ evidence passed muster in terms of section 204.
In my view, she was not a satisfactory accomplice witness
and
the Magistrate’s reliance on her evidence constituted a serious
misdirection.
THE
PARENTS
[34]
Various of the
parents testified some 18 months or more after the event about the
medical condition of their respective children.
That
evidence demonstrated that many of the children had suffered from
colds, flu and other relatively minor ailments
for which they had
been medicated at home with both prescription and over-the-counter
medicines.
[35]
The common theme
that emerged from this evidence was that the parents were generally
happy with the facilities at Kinderland and
that in the main, none
had detected any adverse medical signs in their children while they
attended the crèche. Rather,
it seems that when the
publicity surrounding the police raid arose, there was an attempt at
an
ex post facto
evaluation
by many of them.
[36]
In the course of
cross-examination of the State witnesses, it was suggested by the
attorney for the Accused, that she had administered
a mixture of
Paracetamol (e.g. Panado), honey and ginger to the children from time
to time. While many of the parents indicated
that they had no
objection to their offspring being dosed with Panado from time to
time without their express prior consent having
been obtained, their
apparent displeasure at the combination of natural products such as
honey and ginger therewith, is not persuasive.
[37]
I agree with
Mr
Van der Merwe
that the evidence of Mr
JvR regarding his daughter CvR’s health while at Kinderland
over a three year period (in relation
to count 4 against the Accused)
was of significant importance. He summed her condition up as
follows:
“
Dit
was glad nie sleg daar gewees nie. Sy het dit geniet. Sy
het nooit so fisies na ‘n nuwe skool toe of na iets
begin huil
en toe sy groter is ook begin loop het sy nooit gehuil nie, maar sy
het baie, baie loopneusie gehad en borsies was –
borsie was
maar ‘n bietjie – paar keer dokter to gegaan vir die
bors, maar verder was dit alles 100%
”
.
[38]
At the end of
the day, however, there is nothing striking in the evidence of the
parents which tends to corroborate Carolus and,
in particular, her
claim that the children had been given the large quantities of the
potion already referred to. It must
be borne in mind in that
regard that 15 tablespoons (225 ml) is close to a standard cup
(250ml) of liquid. It is extraordinary
that children who had
received quantities of the mixture measuring from one-third of a cup
up to a near full cup, did not present
with significant medical
symptoms after the ingestion of such relatively large amounts.
THE RELEVANT
LEGAL PRINCIPLES
[39]
Before
discussing the technical evidence of the analysts, it is necessary to
look at the extent of the State’s onus in proving
the main
counts of assault with intent to do grievous bodily harm.
[40]
The
leading judgment on the point is
Marx
[3]
in which the accused was charged with common assault after he gave a
seven year old girl and a five year old boy intoxicating liquor
to
consume. The matter came before the Full Court on review and
was fully argued by both counsel for the State and an
amicus
curiae
.
After considering the common law Williamson JP (with Henning J
concurring) came to the following conclusion at 853C
et
seq
.:
“
I
have referred to such South African authorities as were quoted to us
which might have some bearing on the question; I do
not think
that any statement therein negatives the view that in South Africa
the administration of a noxious substance may amount
to an assault.
That it was considered to be an injuria in Roman and Roman-Dutch Law
seems clear. … By
accepted definition, assault
requires that the aggression be forcible; but the force need not be
directly applied by the person
in charge; it may have been
applied only indirectly. Examples of indirect force had been
mentioned above; Rex
v Jolly is one such example. No
force was applied by the accused to the persons of those affected by
the wreck of the train;
they were affected because of their own
voluntary act of travelling in a train on a line on which the accused
had prepared a trap.
If a person prepares a trap for an unwary
drinker by placing stealthily in his drink some substance which will
cause the drinker
bodily harm, albeit internal harm instead of
external harm, I can see no reason for saying that he has not
indirectly by force
invaded the integrity of the body of his victim.
The fact that the direct application of the harm to the body was
brought
about by the voluntary act of the victim himself in drinking
unwittingly from a glass with a noxious substance in it, does not in
my view make the plotter’s act any different from that of the
accused who prepared a trap for the unwary travellers in
Rex
v Jolly
. There would in
such a case be an attack by the plotter upon the victim’s body
by a force indirectly applied from within
the latter’s body; he
could in my opinion be charged with an assault and convicted
thereof. For this view I am happy
to find support in the
judgment of the Chief Justice of the Federal Supreme Court, Sir John
Clayden, in the case of
R v
Sophi
, 1961 R & N 358 at p
361, where he said that ‘the administration of poison to an
unwitting victim is of course a physical
assault’
”.
[41]
In
A
[4]
Botha JA referred with approval to
Marx
.
In that case certain police officers were charged with assault after
causing detainees to,
inter
alia
,
drink their own urine. The Court
a
quo
had held that, however disgusting the act may have been, since the
consumption of urine did not present any adverse consequences
for the
victim, the conduct of the police officers concerned did not
constitute an assault.
[42]
The Appellate
Division found otherwise, holding that the mere act of forcing
another to drink something (regardless of whether it
was toxic or
not) was sufficient to render that person guilty of an assault,
subject only to the
de minimis
principle.
“
Om
iemand te dwing om iets te drink, is om inbreuk te maak op sy
liggaamlike integriteit, en dit is onteenseglik so, al is die
vloeistof wat hy gedwing word om in te neem onskadelik. [Die
hof a quo] se sienswyse het klaarblyklik berus op die gedagte
dat dit
in bepaalde omstandighede onvanpas sou wees om in hierdie soort
gevalle strafregtelike aanspreeklikheid te postuleer, soos
byvoorbeeld waar een persoon ‘n ander sou dwing om ‘n
slukkie water te drink. Maar as daar in die strafreg nie
van
sulke gedrag kennis geneem word nie, is dit nie omdat die ‘slagoffer’
se liggaamlike integriteit in beginsel nie
daardeur aangetas word
nie, maar wel omdat die strafhof hom nie besig hou met onbenullighede
nie: de minimis non curat lex.
… Daar bestaan in
ons strafhowe ‘n goed gevestigde en heilsame praktyk om, met
die gebruik van die de minimis –
reël, nie mense skuldig
te bevind aan onbenullige aanrandings nie. Met die oog daarop
behoort die Verhoorhof geen huiwering
te gehad het om te bevind dat
die gedwonge oplek van die urine in beginsel ‘n aanranding
uitgemaak het. En volgens
die feite van hierdie saak kan daar
vanselfsprekend geen sprake te wees van de minimis nie.
Gevolglik het die Verhoorhof
gefouteer deur die oplek van die urine
nie as ‘n aanrandingshandeling te beskou nie
”.
[5]
[43]
Against that
background the Regional Magistrate was required to consider whether
the State had established beyond reasonable doubt,
firstly, that the
accused had forced the children to take the potion concerned without
the consent of their parents, and, secondly
whether the potion was
toxic to the extent that it may have caused grievous bodily
harm to the young victims. The Regional
Magistrate did not deal
with the law in respect of the alleged assaults and merely recorded
her finding of guilt in respect of
counts 1-8. I assume that
she intended to convict the Accused of eight counts of assault GBH
(which were the offences with
which she was charged) and not common
assault, which is a competent verdict on such a charge in terms of
section 266(4)(a) of the
CPA.
[44]
That fact (that
there is no finding by the Regional Magistrate in relation to the
elements of the charge, in particular the intention
to cause grievous
bodily harm) presents problems on appeal insofar as this court does
not know what the basis for the convictions
on count 1- 8 was.
[45]
However, in
light of the extensive forensic and pharmacological evidence
presented before the Court
a quo
,
I consider it safe to assume that the State intended to establish
that the substances administered to the eight children in question
contained chemical agents which were potentially harmful to their
health and that therefore assault GBH had been established.
THE SCIENTIFIC
AND FORENSIC EVIDENCE
[46]
When the police
conducted their raid at Kinderland on 12 December 2007, they seized
various quantifies of both scheduled and over-the-counter
drugs.
They also took possession of the liquid substance which Carolus
alleged had been given to the children that morning
and was standing
near the microwave in the kitchen.
[47]
The police
evidence was anything but clear and unequivocal, but there was a
suggestion that when the search party entered the kitchen
the Accused
rushed in and grabbed a container containing liquid which she tried
to pour over a dish cooking in the oven.
Just where that
container came from, what exactly it contained and what was cooking
in the oven was not entirely clear. However,
it bears mention
that the Accused admitted in evidence that she had poured a prepared
sauce containing honey and mustard over a
pork dish that was cooking
in the oven. She denied any knowledge of the mixture referred
to by Carolus.
[48]
Evidently, the
police attempted to decant some of the mixture into an old mayonnaise
jar and to retain both that jar and the original
container for
forensic testing. Regrettably, the police evidence on this
score is poor with numerous contradictions.
Accordingly, when
the evidence regarding the analysis of items seized at the Accused’s
house is evaluated, one must proceed
with extreme caution.
[49]
The various
parents were requested to arrange for blood and/or urine samples to
be procured from their children. In some instances
these
samples were drawn at the local pathology laboratory in Somerset West
and in others, the children were taken to their family
doctors.
Attempts were then made to analyse the chemical compounds in the
liquid(s) found in the kitchen and the tablets
found in the Accused’s
bedroom, and to compare those results with the analysis of the
children’s’ blood and urine.
Ideally, there would
have been traces of the former in the latter.
[50]
At an early
stage of proceedings the defence asked the State to furnish it with
certain raw data files relating to the forensic
analysis performed by
the State’s principal laboratory analyst Ms Dinah Mokhutshwane
(“Mokhutshwane”), attached
to the Department of Health’s
Forensic Chemistry Laboratory in Woodstock, Cape Town. When the
State refused to do so,
the Accused asked the Regional Magistrate to
direct the State to comply with its request and sought a postponement
to enable this
to take place. These requests were refused by
the court. I shall revert to this later.
[51]
Mokhutshwane was
thoroughly cross-examined by the Accused’s attorney and it soon
became clear that she was hopelessly out
of her depth. She was
unable to testify regarding the functioning or accuracy of the gas
chromatograph machine which she
apparently used to analyse the blood
and urine samples, nor could she testify regarding the calibration of
the machine.
[52]
At the end of
the case (after both the State and the defence had concluded their
closing arguments), the Regional Magistrate took
it upon herself to
call Mokhutshwane’s senior, Ms Deidre Adams (“Adams”),
purportedly to clarify critical issues
relating to the analysis of
the samples and the calibration of the laboratory machines. She
gave no reasons for her decision
to do so at the time, but in a
detailed judgment, the Regional Magistrate expressed grave
reservations about Mokhutshwane’s
ability, her lack of
expertise and the factual basis for her evidence. The Court
a
quo
, which was not prepared to accept
the reliability of Mokhutshwane’s laboratory analysis,
effectively ignored her report which
was exhibit C before that court,
and for this reason decided to call Adams.
[53]
I shall deal
later with the appropriateness of the court
a
quo
’s calling of this witness,
but even on the assumption that it was in order, the scientific
evidence before that court was
not sufficient to warrant reliance
thereon.
[54]
The State
laboratory tests were conducted on the blood and urine samples of
five children – BB, CvR, WvM, WL and MS.
The five samples
of all the children were tested to detect the possible presence of
three drugs
viz
.
Amitriptyline (a schedule 5 drug for which a doctor’s
prescription is required); Chlorpheniramine (a schedule 2 drug which
may be obtained without prescription) and Propoxyphene (also a
schedule 5 drug).
[55]
The substance
that was seized by the police in the kitchen (the so-called
“
mayonnaise jar mixture
”)
was sent for analysis to a different laboratory – the Police
Forensic Laboratory attached to their local Narcotics
Unit.
That analysis was performed by Supt. Casper Venter (“Venter”),
a forensic analyst with more than 20 years’
experience.
Venter tested three samples in the Police Laboratory, being the
substance in the mayonnaise jar (conveniently
called “
mixture
B
”), his own concoction made up
from mixing various of the scheduled drugs seized in the Accused’s
bedroom with water
(“
mixture C
”)
and a third substance which had been given by Carolus to September on
Monday, 10 December 2007, just two days before the
police raid
(“
mixture A
”).
[56]
Venter had
analysed mixture A before the raid and detected the presence of
certain active chemical components therein. On
the strength of
that analysis he advised the police to obtain a search warrant for
the Accused’s premises and he was present
throughout the raid.
[57]
Venter testified
about finding the substance in the kitchen which he decanted into the
mayonnaise jar. Venter is an experienced
and careful
policeman. He was cautious in regard to the collection of
samples and to the correct labelling thereof, so as
to ensure the
proper chain of events.
[58]
Venter analysed
mixtures A and B, both of which he described as green coloured
liquids, and recorded his findings in an affidavit
dated 8 February
2008. During his testimony, Venter regularly referred to that
affidavit.
[59]
During the raid
a large variety of tablets were seized. This included branded
forms of Paracetamol (e.g. Accurate and Disprin),
tablets for the
control of blood pressure (Prexum and Ecotrin), certain hormone
supplements and tranquilizers. In his affidavit
Venter listed
more than 15 separate quantities of these drugs, as also some empty
packaging, found in the rubbish bin in the kitchen.
One of the
empty packages related to a drug called “
Accurate
”
of which there were no quantities found on the premises.
[60]
Venter said he
procured a small quantity of “
Accurate
”
tablets from a local pharmacy and used this in mixture C in an
endeavour to establish (by way of comparison) what the possible
components of mixtures A and B were. Venter said that he was
fairly sure that it was the “
Accurate
”
which gave mixtures A and B the green colour.
[61]
Using so-called
gas chromatographic-mass spectrometry (GC-MS) testing (an
internationally acceptable analytical comparative technique
which
separates compounds into gases and characterises them), Venter found
that the three mixtures contained the following chemical
compounds:
61.1
mixture A – Caffeine, Doxylamine, Chlorpheniramine,
Amitriptyline, Codeine and Diazepam;
61.2
mixture B – Paracetamol, Caffeine, Doxylamine, Amitriptyline,
Oxazolam, Codeine, Diazepam and Zopiclone;
61.3
mixture C – Paracetamol, Caffeine, Doxylamine, Amitriptyline,
Oxazolam, Codeine, Diazepam and Zopiclone.
[62]
Venter said he
came to the conclusion that it was possible that mixtures A and B
could have been made up from the tablets which
were found on the
premises. He said that Paracetamol was a Schedule 1 drug and
Codeine a Schedule 2 drug, i.e. they can be
bought over-the-counter,
while Caffeine, Chlorpheniramine and Doxylamine are not listed at all
under the relevant legislation.
The remaining substances found
in mixtures A and B were Schedule 5 drugs and are obtainable only on
prescription.
[63]
Venter said that
when the constituent substances in mixtures A and B were compared, it
appeared that there were three substances
present in the mixture
seized by the police during the raid which were not in the sample
given to Insp. September by Carolus on
10 December –
Paracetamol, Oxazolam and Zopiclone. When mixture C is
compared, it will be seen that there are three
more substances
present in C than those found in A - Paracetamol, Oxazolam and
Zopiclone. Venter was therefore satisfied
that mixtures B and C
could have been concocted using the assortment of tablets found at
the Accused’s house by the police.
He also mentioned that
there were no tablets found which contained the Chlorpheniramine
found in mixture A.
[64]
In regard to the
eight children who form the subject-matter of charges 1 to 8, two of
them, JC (count 2) and TH (count 3) were not
tested for either blood
or urine, while the urine of MH (count 1) was tested by a private
laboratory (Pathcare) in Cape Town.
His sample was drawn by Dr
Herbst, a general practitioner in Somerset West. The
remaining five children’s’
samples (some blood, some
urine and some of both) were all tested by Mokhutshwane.
[65]
It appears as if
Mokhutshwane tested for three substances – Amitriptyline,
Propoxyphene and Chlorpheniramine.
Her test results (to the
extent that any reliance can be placed thereon in light of her
limited qualifications and experience)
show a number of interesting
phenomena:
65.1
firstly, there were no chemical substances found in the blood of
either of DB, CvR, WvM, WL and MS;
65.2
secondly, no Doxylamine was found in either
the blood or urine of any of these children, notwithstanding its
presence in mixtures
A and B;
65.3
thirdly, quantities of Propoxyphene were
found in the urine of CBR, WvM and WL, but not BB or MF. It
will be observed that
there was no Propoxyphene found in either
mixtures A, B or C;
65.4
Amitriptyline was found in the urine of
only CBR and WL. This substance was found to have been in
mixtures A and B;
65.5
Chlorpheniramine was found in the urine
samples of BB, CBR, WvM and WL, but not MS. The substance, not
listed under any schedule,
was present in mixture A but not mixture
B, the substance which Carolus alleged was administered to the
children on the Wednesday.
[66]
In relation to
this analysis the State presented the evidence of Dr Gert Muller, a
specialist anaesthetist with more than 35 years
chemical experience,
who is the head of the Poison Information Centre at Tygerberg
Hospital and is a specialist in Pharmacology.
He commented
firstly on the effects of three of the substances,
viz.
Amitriptyline, Chlorpheniramine and Propoxyphene. Dr Muller
drew the court’s attention to the fact that substances
are
metabolised in the human body by the liver. In analysing a
urine sample, a scientist would expect to detect the so-called
“
mother substance
”
because this is excreted unchanged after metabolisation.
[67]
Dr Muller said
that Amitriptyline is a schedule 5 drug used in the management of
depressive orders and is not recommended for use
in children under
six years of age. He expressed concern with Mokhutshwane’s
laboratory report which did not record
the detection of any major
metabolites of Amitriptyline. It is known that major
metabolites reach higher concentrations in
the human than in the
parent compound.
[68]
In regard to
Propoxyphene (also a schedule 5 drug), Dr Muller explained that it is
an opioid or morphine-like drug used in pain
management but not
generally in children. In regard to this drug Dr Muller held
similar concerns regarding the absence of
major metabolites in the
urine.
[69]
Finally, in
regard to Chlorpheniramine (a Schedule 2 drug), Dr Muller explained
that this was an antihistamine with known sedative
properties.
It was available in over the counter drugs such as Teejel and
Dermazine which are suitable for use with young
children.
[70]
Under
cross-examination Dr Muller was asked whether a drug such as
Amitriptyline, which had been regularly ingested, would be expected
to have been detected in the blood. He confirmed this.
And, when referred to mixture B, it was pointed out to Dr Muller
that
of all the known substances relevant to this case, only Amitriptyline
was detected upon analysis by Mokhutshwane. He
agreed that this
was strange.
[71]
When asked with
regard to the presence of Propoxyphene in the urine of three of the
children tested by Mokhutshwane, Dr Muller acknowledged
that this
substance was not found in either mixture A or B. And when it
was put to him that no drug containing that substance
had been found
by the police during the raid, he was unable to comment.
[72]
Dr Muller was
asked to comment on the analysis by Pathcare of the urine of NH, to
which I will refer more fully later. He
observed that the
finding that an opiate was found in that sample denoted a fairly
general term ranging from drugs such as Morphine
to Heroine and
Codeine. He regarded it as an oddity that the pathology report
was unable to be more accurate with regard
to the actual drug
involved.
[73]
In relation to
mixture B, Dr Muller described it as “
horrendous
”
in a “
potentially toxic
”
combination. He said it surprised him that if the mixture was
used on 12 December 2007, the children did not exhibit
more serious
side-effects. Finally, Dr Muller expressed serious reservations
about the quality of the testing at the Department
of Health’s
Laboratory in Woodstock.
[74]
There is one
further disturbing aspect arising from the evidence of Mokhutshwane
and that relates to the samples from WL presented
for testing.
In para 2.4 of her report (exhibit C), Mokhutshwane records that on
14 December 2007 she received five sealed
plastic envelopes from the
police’s FCS Unit at Khayelitsha. One of those envelopes
was sealed with seal number FSB
537829, marked Somerset West CAS
42/12/07 and carried the victim, WL’s name. The bag was
found to contain three test
tubes, one containing blood and two
urine, as well as a further small plastic container marked “
WL
”
containing urine.
[75]
WL’s
mother testified that towards the end of November and at the
beginning of December 2007 her son had experienced a runny
tummy,
followed by bronchitis. He had been treated for this with
medication called “
Bronchiolitis
”.
On the morning of 12 December 2007, she was called by the police and
asked to collect WL from Kinderland at about
10h00 and take him
to the Vergelegen Medi-Clinic for tests.
[76]
Ms L testified
that blood and urine samples had then been drawn by an employee of
the local pathology laboratory and packaged and
sealed in her
presence. The samples were left at the laboratory for
collection by the police. She was later informed
by the police
that certain of the samples had tested positive.
[77]
When Insp.
September gave evidence, he confirmed that he had collected WL’s
blood and urine samples from Pathcare, Somerset
West, on 12 December
2007 and sealed them in a forensic bag marked 537829. Under
cross-examination, he confirmed receipt
of a test tube and small
bottle containing these items. When confronted with the
evidence that at least three samples
(two test tubes and one
bottle) were received by Mokhutshwane, the witness said he could not
explain it.
[78]
The State called
Ms Minette van Viegen, the Pathcare employee who drew WL’s
sample, to testify. She was a registered
nursing sister with 13
years’ experience at the time. She said that she
had handled one test tube containing
blood and a urine sample in a
bottle. She was aware of the fact that the police came and
collected the samples, but did not
go so far as to say that she
handed them over personally. She was asked under
cross-examination to comment on the fact that
three containers with
urine and a test tube containing blood had arrived at Woodstock as
recorded by Mokhutshwane. She was
unable to cast any light on
the difference.
[79]
As proof of the
analysis of the urine sample in respect of MH (relating to count 1)
which was analysed by Pathcare’s Laboratories
in Cape Town, the
State produced
a pro forma
report by Dr Izak Loftus, a senior partner in the firm of
pathologists involved. When the defence objected to the
admission
of the document, Dr Loftus was called to testify.
[80]
The
viva
voce
evidence of Dr Loftus was also
objected to on the basis that it was hearsay. It was contended
that the evidence, which
was intended to place the initial
laboratory report before the Court, was not the result of the
witness’s own evaluation
of the sample. It was said that
the only person who could testify about the test results was the
person (a laboratory technician)
who had actually conducted the
tests.
[81]
The Court
a
quo
handled the objection by the
defence in a most unusual manner. After hearing the defence’s
objection, she offered the
State the opportunity to argue on the
admissibility of the report. The prosecutor did not reply but
simply said to Dr Loftus:
“
Professor
het nou die verdediging se beswaar gehoor. Kan u daarop antwoord
asseblief?”“
[82]
Dr Loftus then
proceeded to explain, firstly, why the report was endorsed with the
following disclaimers:
“
1)
Hierdie resultate is vir diagnostiese inligting alleenlik en kan nie
vir medies – geregtelike doeleindes gebruik word nie.
2)
Bogenoemde analise is ‘n kwalitatiewe sifting MBV immunochemie
uitgevoer soos deur die “substance abuse and mental
health
services administration” aanbeveel.
3)
GC/MS tegnieke gee meer spesifieke en sensitiewe inligting (duur en
tydrowend). Indien op hierdie monster benodig, skakel
asb die
laboratorium onmiddellik.”
Given
the explicit disclaimer in para (1) of the report, it had no place in
criminal proceedings such as those before the Court
a quo
.
Clearly the testing was not considered, by the laboratory itself, to
be sufficiently conclusive to withstand the scrutiny
required to
establish guilt beyond reasonable doubt.
[83]
This
notwithstanding Dr Loftus considered it appropriate to embrace
the test results and he proclaimed the integrity of the
testing with
respect to the general reputation of the laboratory and said, since
it was impractical to call the various employees
involved in the
chain of evidence, as also the actual analysis thereof, he would
assume exclusive responsibility for the accuracy
of the report.
[84]
Dr Loftus’s
answer only served to highlight the inadmissibility of the report,
but rather than uphold the objection, the Magistrate
simply allowed
the witness to continue testifying. It was only upon enquiry
from the defence that the Magistrate noted that
she was overruling
the objection: no reasons for the decision were furnished.
[85]
Under
cross-examination Dr Loftus confirmed that he had nothing to do with
the testing of the sample which was performed by his
staff, and
confirmed further, that he had no knowledge of the chain of integrity
in regard to the preservation of the sample.
In my view, the
evidence of Dr Loftus was manifestly hearsay and should not have been
permitted by the Court
a quo.
In any event, as I have said, in light of the disclaimers referred to
above, the reliability of the analysis is open
to doubt.
[86]
After the
accused had testified, the defence called Dr C.C. Viljoen who was the
former Head of the Department of Health’s
Forensic Laboratory
in Pretoria from 1985 to 2004. He was evidently a highly
qualified and experienced scientist who now
acts as a forensic
consultant.
[87]
In an endeavour
to place Dr Viljoen in a position to assess and evaluate the analysis
of Mokhutshwane, the defence sought the latter’s
raw data. As I
said earlier, this was refused by the Court
a
quo
thus placing the defence at a
significant disadvantage.
[88]
Dr Viljoen was
briefed with a transcript of the relevant portions of the record and
asked to comment on the evidence of Mokhutshwane.
His trenchant
criticism of her laboratory procedures and ultimately her test
results dealt the State’s case a devastating
blow. It is not
necessary to go into any detail in this regard because, as I have
already shown, the Regional Magistrate declined
to rely on
Mokhutshwane’s evidence.
[89]
At the
conclusion of the argument before her, the Regional Magistrate
clearly realized that the State’s case was severely
compromised
and that the integrity of the laboratory results was of little
value. She said as much in her judgment later
when she was
highly critical of Mokhutshwane.
[90]
On 2 August
2010, at the conclusion of argument on both sides, the Regional
Magistrate postponed the matter for two months to enable
her to
deliver judgment on 15 October 2010. There is no transcript of
the proceedings on the latter date but the Regional
Magistrate’s
handwritten notes attached to the charge sheet record a postponement
on that date to 21 January 2011.
No reasons are recorded.
[91]
The typed
transcript resumes on 21 January 2011 and the Regional Magistrate is
recorded as having informed those present of her
decision to call two
further witnesses pursuant to the provisions of sec 186 of the CPA.
Due to their non-availability the
case was postponed to 14 February
2011. The accused was informed of her right to “
rebut
the evidence
” to be given by
those witnesses, whereafter judgment would be delivered on 17
February 2011. The accused’s attorney
placed on record
his client’s concern that the Court was calling witnesses to
bolster the State’s case.
[92]
When the matter
continued on 14 February 2011 the Magistrate called two witnesses –
Ms Patricia Cleary from the Pathcare Laboratory
in Cape Town and Ms
Deidre Adams, who had previously been employed as Mokhutshwane’s
superior. It is significant, I
consider, that the former’s
name was not previously mentioned in the evidence and it is fair to
conclude that the Regional
Magistrate must therefore have made her
own enquiries to establish her ability, and availability, to testify.
[93]
The purpose of
the evidence of Cleary, which the Regional Magistrate herself led,
was to establish the calibration, accuracy and
ordinary use of the
GC/MS machines used by Pathcare. She had not handled the sample
in question, nor did she have access
to the raw data relevant to the
analysis. Her evidence related, at best, to the usual standard
procedures employed at that
laboratory.
[94]
Adams’
name had been mentioned during the evidence of Mokhutshwane in the
context of her seniority at the Woodstock Laboratory.
In her
case, too, the Regional Magistrate must have made enquiries of her
own to enable her to be satisfied that the witness could
help the
Court, and that her testimony would have evidentiary value in the
context of the case.
[95]
Adams testified
that she had operated the relevant GC/MS machine and had analysed
certain samples. She said that Mokhutshwane’s
roll was
that she brought samples to her which she (Mokhutshwane) entered into
a book with a description of the suspected compounds.
This
evidence flew in the face of Mokhutshwane’s testimony which was
to the effect that she had personally analysed the samples.
[96]
The defence
recalled Dr Viljoen after these witnesses to re-evaluate the
laboratory procedures allegedly followed at Woodstock.
Dr
Viljoen remained unpersuaded and pointed out that Adams’
evidence was incapable of verification in the absence of the
raw data
which the defence had requested all along. The
cross-examination of this witness by the prosecutor was
inconsequential
and did not serve to cast any doubt over his expert
opinion.
[97]
It is
significant, I consider, to note that the Regional Magistrate
recognised the risks inherent in her decision to call witnesses
which
might prop up the State case after the conclusion of argument.
To that extent she made the following remark in her
judgment:
“
Mr
Gess, in his address to the Court, on instruction of the accused,
uttered his disapproval, and disappointment, suggesting undue
partisanship in favour of the State. This Court is adequately
(
sic
)
aware of the fact that where the Court calls a witness, at the
conclusion of the State and Defence case, in circumstances where
the
record does not disclose that an offence has been committed, and
convicts on the strength of that evidence, or the evidence
of such a
witness, a conviction may be set aside on appeal.”
With
reliance on
dicta
in
cases such as
Hepworth
and
Von
Molendorff
[6]
which are to the effect that
a judicial officer is an administrator of justice and not merely an
umpire in a criminal trial, and
that her task was to see that justice
was done in the quest for the truth in any given matter, the Regional
Magistrate sought to
justify her decision thus:
“
This
Court is of the strong view that the perception of partiality was not
justified in the light of the overwhelming circumstantial
evidence,
which I have found to be damaging to the accused, thus duty bound to
do so, as it is essential to the just decision of
this case.”
[98]
There can be
little doubt that on a proper reading of this part of the judgment
set in the context of the evaluation and criticism
of other
witnesses, in particular Mokhutshwane, that the Regional Magistrate
believed that if she did not call those witnesses
she would have to
acquit the accused on the relevant charges (1 and 4-8).
[99]
The power of a
criminal Court to call witnesses
mero
motu
is sourced in section 186 of the
CPA which is to the following effect:
“
The
court may 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 cause a witness to be subpoenaed
if the evidence of such witness appears to the court
essential to the
just decision of the case.”
In
Gabaatlholwe
[7]
Heher AJA considered the
import of the phrase “
essential
to the just decision of the case
”
and concluded that it:
“…
means
that the Court, upon an assessment of the evidence before it,
considers that unless it hears a particular witness it is bound
to
conclude that justice will not be done in the end result. That
does not mean that a conviction or acquittal (as the case
may be)
will not follow but rather that such conviction or acquittal as will
follow will have been arrived at without reliance
on available
evidence that would probably (not possibly) affect the result and
there is no explanation before the Court which justifies
the failure
to call that witness. If the statement of the proposed witness
is not unequivocal or is non-specific in relation
to relevant issues
it is difficult to justify the witness as essential rather than of
potential value.”
[100]
In
Gerbers
[8]
Marais JA referred to the
obvious tension between the need to fullfil the roll of a judicial
officer and the need to avoid conduct
which was irregular and which
could result in a failure of justice in the context of the exercise
of the discretion by a judicial
officer under sec 186 to call
additional evidence. The Court stressed that it remained
incumbent upon judicial officers to
constantly bear in mind that the
bone
fide
efforts to do justice could be misconstrued by one or other of the
parties as undue partisanship and that the right balance had
to be
found between undue judicial passivism and undue judicial
intervention:
“
The
recall by a court of an accused to the witness-box for further
questioning after the conclusion of an argument is no doubt something
which is relatively rare and which should not lightly be resorted to.
The reasons are obvious: once
lacunae
or inadequacies in the State’s case have been identified and
relied upon in argument by counsel for an accused, steps taken
mero
motu
by a court at that belated
stage of the proceedings to fill the
lacunae
or to remedy the inadequacies
are likely to be seen as indicative of undue partiality towards the
cause of the State. Even
if that perception is wrong, it is one
which could genuinely arise in the mind of an accused. Plainly,
that is to be avoided.”
[101]
What is
significant, in my view, in this case is that the additional evidence
of the sec 186 witnesses really takes the State’s
case no
further. And yet, this notwithstanding, the Regional Magistrate
sought to rely on that evidence in an obvious attempt
to fill the
gaps in the State’s case. It is really that part of her
finding (together with some further aspects to
which I shall refer
shortly) which expose the Court
a quo’s
intervention in the proceedings for what in truth it was: undue
intervention prompted by undue partiality towards the cause of
the
State.
[102]
And when one
considers the way in which the Court
a
quo
precluded the defence
from obtaining access to the raw data to enable Dr Viljoen to
properly evaluate the test results relied
on by the State, coupled
with her failure to properly evaluate and consider the compelling
testimony of Dr Viljoen, the perception
is, most regrettably,
confirmed.
[103]
In any event,
the expert evidence of the scientific witnesses adduced both by the
State and the Regional Magistrate herself does
not, when considered
either individually or collectively, measure up to the requisite
standard which our courts have, over the
decades, demanded.
[104]
In
Mthimkulu
[9]
, Corbett JA referred to the
Third
Edition of Wigmore on Evidence
and held that in order to justify testimony based on scientific
instruments or processes, professional testimony is required as
to
the trustworthiness of the process, or to the instrument, and in
addition, to the correctness of the particular instrument.
Recognizing that the doctrine of judicial notice may suffice in
certain cases as to the trustworthiness of the process, the learned
Judge of Appeal considered the circumstances in which a court will
insist upon, or relax, the standards of proof which apply when
assessing evidence involving the use of scientific instruments.
[10]
These will include the nature of the process and instrument involved
in the particular case, the extent, if any, to which
the evidence is
challenged, the nature of the inquiry and the
facta
probanda
in the case. But at the end of the day the learned Judge of
Appeal reminds us that there is no hard and fast rule and that
much
will depend on the facts of each case.
[105]
In
Strydom
[11]
the Full Court
(relying on
Mthimkulu
)
found that judicial notice could not be taken of the accuracy of a
gas chromatograph used to measure blood alcohol limits:
“
In
the present case, the machine itself is used to test its own
accuracy. What is missing is proof that, if the machine gives
a
particular reading when tested with standard alcohol, it is reliable
in that regard and is also sufficiently accurate to give
a reliable
reading when analysing blood. This proof would be by way of
expert technical evidence to that effect by a person
able to describe
the process in the machine and to vouch for its reliability, or by
testing the machine against another, unrelated
method of analysis.
Such method, if already the subject of judicial recognition, would
not itself require proof of accuracy.
(..
Mthimkulu..
at
365E..) Such evidence would be necessary until general
recognition of accuracy was accorded the machine.
The
absence of such evidence, more particularly when there is reliable
evidence that the result of the analysis of the Appellant’s
blood is out of keeping with the findings of the district surgeon on
clinical examination and with the police constable’s
observations, raises a doubt as to the reliability of the analysis.”
[106]
That very
evidence is absent in this matter too and the
facta
probanda
necessary to verify the
accuracy of the GCMS machine were not presented to the Court
a
quo
nor made available to Dr Viljoen
who expressly called into issue the accuracy and calibration of the
machine used by Mokhutshwane.
[107]
When the
evidence of Carolus is considered she would have the Court
a
quo
believe that significant volumes of
mixture B were administered to the eight complainant children on the
day in question. It is
reasonable to infer then (and Dr Muller
confirmed) that the chemical substances/compounds which made up that
mixture (and which
Supt. Venter was also able to closely mirror in
mixture A – his own concoction based on the tablets found in
the house) would
have been found in the samples taken from the six
children whose blood and/or urine samples were analysed.
[108]
However, the
scientific evidence, as flawed as it was, did not sustain this
inference. Indeed, the only substance found in
mixture B that
was found by Mokuthswane also in any of the six samples taken from
the children was Amitriptyline, and then only
in the samples of WL
(count 5) and CvR (count 6). In addition, the generalised reference
in the Pathcare report to “
Opiates
”
is, in my view, not sufficiently accurate to include Amitriptyline.
[109]
Further, there
were quantities of Chlorpheniramine and Propoxyphene detected by
Mokutshwane in the samples of WvM (count 4) WL (count
5) and CvR
(count 6), while only the former substance was found in the sample of
BB (count 7). Yet, these substances were
not found to be
present in mixture B, the potion allegedly administered that day.
[110]
Finally, the
urine sample of MS (count 8) which was allegedly also analysed by
Mokuthshwane for the presence of Amitriptyline, Chlorpheniramine
and
Propoxyphene was found to be negative in all respects.
[111]
These
significant anomalies in the laboratory results cast a serious shadow
of doubt over the evidence of both Carolus and Mokhutshwane.
In
regard to Carolus, one is driven to ask whether mixture B was indeed
administered at all that day to any of the complainant
children, or
whether it simply was a concoction made up by her, with knowledge of
the impending raid, in a crude attempt to implicate
her employer in a
string of serious offences.
[112]
When assessing
the testimony of Mokhutshwane (and later also Adams), one has to have
serious doubt about the accuracy of the testing
equipment, the
competence of the laboratory staff and the reliability of the
analysis of the samples when reviewing the vast disparity
in test
results relating to a potion which was allegedly administered to all
eight children. How could it be that some children
had this,
others that and another nothing at all?
[113]
The anomalies
and inconsistencies to which I have just referred are obvious when
the scientific evidence is considered comparatively.
Indeed, Dr
Muller alluded thereto in his evidence and the defence also dealt
therewith in argument, both before and after the Court
a
quo
invoked sec 186. Yet, in a
detailed
ex tempore
judgment which runs to some 110 pages of the record, the Regional
Magistrate failed to appreciate the significance thereof and
failed
to evaluate the inconsistencies. Had she done so she would,
like this Court, have had serious doubt about the State’s
case
even after she had invoked sec 186.
[114]
As I observed at
the beginning of this judgment, the State bore the onus of
establishing the administration of substances to these
children which
were considered to be noxious. In the context of the case, the
administration of a mixture of ginger, honey
and Panado (as alleged
by the defence) was apparently done with the consent of the parents
in some instances (specifically in regard
to Panado). But, even if
there was no such consent, in my view the Accused’s conduct
amounted to the administration of a
substance to be regarded as
falling within the ambit of the
de
minimis
principle. I say so
because of the generally held view by both parents and the medical
witnesses that Panado was a relatively
harmless over-the-counter drug
generally available for administration to young children.
[115]
I am therefore
not persuaded that the State established beyond reasonable doubt
either, that the alleged substance was administered
to the eight
children in question, or that it was a noxious substance.
[116]
The judgment on
the merits, instead of dealing with these concerns, contains a
stinging attack on the accused. While it cannot
be disputed
that the accused was a poor witness, the Regional Magistrate, in my
view, was unduly critical of her. However,
in my view, the
flaws in the defence case contribute nothing in the overall
assessment of the case: a matter in which the State’s
case was
fundamentally flawed from the outset.
CONCLUSION
[117]
In my view
therefore the appeal against the convictions on counts 1-8 is upheld
and the convictions and subsequent sentences are
hereby set aside.
P.A.L.
GAMBLE
I
concur
:
SMIT,
AJ
[1]
That
Act has since been replaced with the Children’s Act, 38 of
2005 which only came into effect in 2010.
[2]
The
charge sheet alleged in respect of each child that the Accused
“
onnodige
medikasie laat toedien en/of self toegedien het
”.
[3]
S
v Marx
1962
(1) SA 848 (N).
[4]
S
v A en ‘n Ander
1993
(1) SACR 600 (A).
[5]
607d-g.
[6]
R.
v. Hepworth
1928
AD 265
at 277;
S
v Von Molendorff and Others
1987 (1) SA 135 (T)
[7]
S
v Gabaatlholwe and Another
2003
(1) SACR 313
(SCA) at 316-7
[8]
S
v Gerbers
1997
(2) SACR 601
(SCA) at 609e-f
[9]
S
v Mthimkulu
1975 (4) SA 759 (AD)
[10]
These
include the use of a scale for weighing, a tape for measuring and a
watch for timing.
[11]
S
v Strydom
1978
(4) SA 748
(E) at 751F and 753A