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IN THE HIGH COURT OF SOUTH AFRICA


(GAUTENG DIVISION, PRETORIA)
CASE NO : CC113/13
In the matter between:
THE STATE
and
OSCAR LEONARD CARL PISTORIUS Accused
HEADS OF ARGUMENT
INDEX
THE COUNTS..............................................................................................................................
SYNOPSIS OF COUNT 1 : MURDER..........................................................................................
ANALYSIS OF COUNT 1 MURDER.......................................................................................
LEGAL PRINCIPLES APPLICABLE TO THE ONUS................................................................
CHRONOLOGY OF EVENTS (TIME LINES).............................................................................
THE CHRONOLOGY OF EVENTS RELEVANT TO THE EARLY HOURS OF THE
MORNING OF 14 FEBRUARY !13 (THE TIME LINES)..........................................................
DINNER (APPROXIMATELY !1:!! (ON 14 FEBRUARY !13) ACCORDING TO THE
STATE (AND 1":!!#!:!! ON 13 FEBRUARY !13, ACCORDING TO THE
ACCUSED).................................................................................................................................
THE (ALLEGED) ARGUMENT (APPROXIMATELY #3AM).....................................................
SUMMARI$ED, THE TIME CHRONOLOGY OF EVENTS EARLY MORNING OF 14
FEBRUARY !13 IS AS FOLLO%S:.........................................................................................
THE FIRST SOUNDS# ANYTIME BET%EEN APPROXIMATELY 3:13 AND 3:14....................
THE TIME OF SHOUTING, &HELP, HELP, HELP'# APPROXIMATELY !3:14/1(.....................
THE SCREAMING# APPROXIMATELY ANY TIME BET%EEN !3:1 !3:1).........................
THE ACCUSED %AS SEEN %AL*ING IN THE BATHROOM # APPROXIMATELY
Page 2
!3:1(..........................................................................................................................................
!3:1)# THE SECOND SOUNDS................................................................................................
!3:1":!3 (TIME OF ACCUSED+S PHONE CALL TO ,OHAN STANDER)................................
!3:!:!( (THE ACCUSED MADE A CALL TO NETCARE "11)................................................
!3:1:33 (THE ACCUSED MADE A CALL TO SECURITY)......................................................
!3::!( (TIME OF SECURITY+S RETURN CALL TO THE ACCUSED AND
ARRIVAL OF SECURITY AT THE ACCUSED+S HOUSE).........................................................
!3:/!3:3 (ESTIMATED TIME OF ,OHAN STANDER AND CARICE VIL,OEN+S
ARRIVAL AT THE SCENE)........................................................................................................
APPROXIMATELY !3:3/3:4 (DR STIPP ARRIVED AT THE HOUSE OF THE
ACCUSED).................................................................................................................................
!3:):!- (TIME OF ,OHAN STANDER+S CALL TO NETCARE)..............................................
!3:):14 (TIME OF DR STIPP+S SECOND ATTEMPTED CALL TO SECURITY)....................
!3:41:(. AMBULANCE ARRIVED AT THE SECURITY GATE OF THE
SILVER%OODS ESTATE..........................................................................................................
APPROXIMATELY !3:(! (ACCUSED %ENT UPSTAIRS)........................................................
THE SCREAMING : THE DECEASED OR THE ACCUSED....................................................
SYNOPSIS OF THE SCREAMING...........................................................................................
RELATIONSHIP BET%EEN THE ACCUSED AND THE DECEASED....................................
COLONEL VAN RENSBURG..................................................................................................
THE FANS AND THE EXTENSION CORD..............................................................................
THE DUVET AND THE DENIM TROUSERS...........................................................................
THE ACCUSED........................................................................................................................
THE VERSION OF THE ACCUSED DURING THE BAIL APPLICATION...............................
ACCUSED+S STATE OF MIND DURING HIS TESTIMONY....................................................
THE ACCUSED+S VERSION AT THE TRIAL..........................................................................
DOLUS DIRECTUS..................................................................................................................
DOLUS EVENTUALIS.............................................................................................................
ERROR IN PERSONA.............................................................................................................
EXAMPLE 1.............................................................................................................................
EXAMPLE .............................................................................................................................
EXAMPLE 3.............................................................................................................................
Page 3
DOCTRINE OF TRANSFERRED MALICE/INTENT...............................................................
CRIMINAL CAPACITY.............................................................................................................
PUTATIVE PRIVATE DEFENCE..............................................................................................
CULPABLE HOMICIDE...........................................................................................................
___________________________
THE COUNTS
1. The Accused is charged with !ur c!unts:
1.1 C/012 1 : 304564
The a""egati!ns re"ied u#!n in the Indictment are that the
Accused un"awu""$ and intenti!na""$ %i""ed &ee'a Steen%am#
()the *eceased+,.
1.2 C/012
1.2.1 The a""egati!ns re"ied u#!n b$ the State in the
Indictment are that the Accused c!ntra'ened Secti!n
12-(., (read with the re"e'ant secti!ns theret!, ! the
/irearms C!ntr!" Act0 1- ! 2--- ()the /irearms Act+,0
in that !n 3- Se#tember 2-120 and whi"st tra'e""ing in
a 'ehic"e with !ther #assengers0 he un"awu""$
discharged his 2 mm #ist!" thr!ugh the !#en sunr!!
! the car the$ were tra'e""ing in0 with!ut an$ g!!d
reas!n t! ha'e d!ne s!.
Page 3
1.2.2 The a"ternati'e t! C!unt 2 is that the Accused
c!ntra'ened Secti!n 12-(3,(b, ! the /irearms Act b$
discharging his irearm as reerred t! in C!unt 20 with
rec%"ess disregard !r the !ther #assengers in the car
and4!r #e!#"e in the 'icinit$.
1.3 C/012 3
1.3.1 The a""egati!ns re"ied u#!n b$ the State in the
Indictment are that the Accused c!ntra'ened Secti!n
12-(5, (read with the re"e'ant secti!ns theret!, ! the
/irearms Act b$ un"awu""$ discharging a 6"!c% 25
#ist!" in Tasha7s &estaurant with!ut an$ g!!d reas!n
t! ha'e d!ne s!.
1.3.2 The /irst A"ternati'e t! C!unt 3 is that the Accused
c!ntra'ened Secti!n 12-(3,(a, ! the /irearms Act b$
using the said 6"!c% #ist!" in circumstances reerred
t! in C!unt 30 which caused damage t! the "!!r ! the
restaurant.
1.3.3 The Sec!nd A"ternati'e t! C!unt 3 is that the Accused
c!ntra'ened Secti!n 12-(3,(b, ! the /irearms Act b$
discharging the said 6"!c% #ist!" in Tasha7s
&estaurant0 at a tab"e in the restaurant am!ngst !ther
#atr!ns in a manner "i%e"$ t! endanger the saet$ !
#e!#"e at his tab"e and4!r !ther #atr!ns and the
Page 8
#r!#ert$ ! the restaurant.
1.3 C/012 4
The a""egati!ns re"ied u#!n b$ the State are that the Accused
c!ntra'ened Secti!n 2- (read with re"e'ant secti!ns theret!, !
the /irearms Act0 b$ un"awu""$ #!ssessing 3. 9 3. r!unds !
ammuniti!n at his h!use at 2.1 :ushwi""!w Street0 Si"'erw!!ds
C!untr$ Estate0 Si"'er ;a%es0 with!ut an$ right t! #!ssess the
said ammuniti!n.
2. <e #r!ceed t! dea" with C!unt 1 = >urder.
SYNOPSIS OF COUNT 1 : MURDER
3. <hen c!nsidering the State7s c!ntenti!ns that the Accused acted with
direct intent t! %i"" the *eceased0 !ne must bear in mind that the State7s
case is #remised !n circumstantia" e'idence. T! discharge the burden
resting u#!n it0 the State must #r!'e:
3.1 that the inerence s!ught t! be drawn b$ the State must be
c!nsistent with a"" the #r!'ed acts?
3.2 a"" #r!'ed acts must e9c"ude a"" !ther reas!nab"e inerences
r!m them0 sa'e the !ne s!ught t! be drawn?
3.3 i the$ d! n!t e9c"ude !ther reas!nab"e inerences0 then there
must be d!ubt whether the inerence s!ught t! be drawn is
c!rrect.
Page 1
(S 7 B8/3 reerred t! be"!w,.
3. @!we'er0 the State endea'!urs t! gr!u# a number ! inerences
t!gether as Austiicati!n !r its case. The diicu"t$ is that re"iance cann!t
be #"aced !n an$ such inerence0 un"ess e'er$ inerence s!ught t! be
drawn meets the reBuisite criteria "aid d!wn in S 7 B8/3.
8. /!r its re"iance !n direct intent0 the State a""eges that:
8.1 There was an argument between the Accused and the
*eceased during the ear"$ m!rning h!urs ! 13 /ebruar$ 2-13.
8.2 The argument cu"minated in the *eceased ha'ing "ed t! the
t!i"et. She "!c%ed herse" in the t!i"et and screamed.
8.3 The Accused ired 3 sh!ts with the intenti!n t! %i"" the *eceased.
The sh!ts #er!rated the t!i"et d!!r0 ata""$ inAuring the
*eceased.
8.3 It a"s! seems that the State ma$0 s!mewhat tentati'e"$0 suggest
that the re"ati!nshi# between the Accused and *eceased was
c!nduci'e t! a rageCt$#e %i""ing0 b$ the Accused.
1. There!re0 the e9istence ! the a""eged argument and the a""eged
screaming b$ the *eceased are crucia" !r the State7s re"iance !n direct
intent.
5. In regard t! the a""eged argument0 the State see%s t! re"$ !n Pr!ess!r
Saa$man7s e'idence t! sh!w that the *eceased7s "ast !!d inta%e was at
Page 5
ab!ut !1:!!. Acc!rding t! the State this wi"" su##!rt its case that there
was an argument r!m ab!ut !:!! u# unti" the sh!!ting0 which !ccurred
sh!rt"$ ater !3:!!.
.. <e wi"" sh!w hereunder that !n Pr!ess!r Saa$man7s !wn e'idence in
regard t! gastric em#t$ing0 the "ast !!d inta%e c!u"d ha'e !ccurred at
ab!ut 3:!!0 as he stated that there c!u"d be a time 'ariati!n ! u# t!
tw! h!urs (i ca"cu"ated acc!rding t! his estimati!n ! the "ast !!d inta%e
at !1:!!,.
2. <e wi"" a"s! sh!w that Pr!ess!r Saa$man7s !wn e'idence d!es n!t
Austi$ his estimated timing ! the "ast !!d inta%e as the !n"$ reas!nab"e
inerence0 e9c"uding a"" !ther inerences. Our c!ntenti!n is su##!rted b$
the e'idence ! Pr!ess!rs :!tha and ;undgren.
1-. The State see%s t! re"$ !n >rs 'an der >erwe7s e'idence t! #r!'e the
e9istence ! an argument.
11. <e dea" in detai" with >rs 'an der >erwe7s e'idence hereinbe"!w t!
dem!nstrate that her e'idence deinite"$ d!es n!t #r!'e an argument
between the Accused and the *eceased0 sti"" "ess d!es it #r!'e an
argument between them as the !n"$ reas!nab"e inerence e9c"uding a""
!ther reas!nab"e inerences.
12. There were tw! se#arate incidents ! s!unds. The irst s!unds were
described b$ the witnesses0 *r and >rs Sti##0 as gunsh!ts0 and the
sec!nd s!unds were simi"ar"$ described b$ *r and >rs Sti## as
gunsh!ts.
Page .
13. In regard t! the c!ntenti!n that the *eceased was screaming #ri!r t! the
ata" sh!!ting0 regard must be had t! the act that b!th s!unds c!u"d n!t
ha'e been caused b$ gunsh!ts0 as it is c!mm!n cause that !n"$ !ur
sh!ts were ired. The !ur sh!ts #er!rated the t!i"et d!!r and !ur
em#t$ cartridges were !und.
13. *r and >rs Sti##7s e'idence made it unnecessar$ t! ca"" an e9#ert t!
c!nirm that the s!und caused b$ a 2 mm #ist!" being ired ma$ s!und
simi"ar (t! a "a$#ers!n, t! the s!und made b$ a cric%et bat stri%ing the
t!i"et d!!r as *r and >rs Sti##7s e'idence c!nirmed the simi"arit$ in
s!und in the ear"$ h!urs ! the m!rning t! a "a$#ers!n. <!"marans0 in
an$ e'ent0 c!nirmed the a!reg!ing.
18. The Accused7s 'ersi!n is that the irst s!unds were the 3 gunsh!ts0 and
the sec!nd s!unds were caused b$ the Accused stri%ing the d!!r three
times with a cric%et bat in an attem#t t! brea% the t!i"et d!!r !#en.
11. The State e9#ert witness0 C!"!ne" Dermeu"en0 testiied that the t!i"et
d!!r was initia""$ #er!rated b$ the !ur bu""ets and thereater damaged
b$ the cric%et bat. *i9!n and <!"marans agreed. This acc!rds with the
'ersi!n ! the Accused.
15. *uring *r Sti##7s e'idence the State disc"!sed that the sec!nd s!unds
(at !3:1), were the gunsh!ts. This was ater *r Sti## had testiied that
the *eceased w!u"d n!t a ha'e been ab"e t! scream ater the sh!ts.
1.. The State must ha'e rea"ised that it must ma%e the sec!nd s!unds the
sh!ts0 !therwise the State7s e'idence ab!ut a ema"e screaming w!u"d
Page 2
#r!'e t! be wr!ng.
12. <e wi"" sh!w hereunder that the State7s decisi!n t! ma%e the sec!nd
s!unds the gunsh!ts created seri!us im#r!babi"ities and c!ntradicti!ns
in the State7s !wn case.
2-. <e detai" the e'idence be"!w when we dea" with the irst s!unds t!
dem!nstrate that the irst s!unds were in act the !ur gunsh!ts.
21. >rs 'an der >erwe7s e'idence ma%es it c"ear that the irst s!unds were
the gunsh!ts. >rs 'an der >erwe7s e'idence is that she heard a ema"e
'!ice ar awa$0 which was n!t c!nstant0 thereater she heard !ur
gunsh!ts and then the screaming.
22. >rs 'an der >erwe7s e'idence acc!rds with the State7s /urther
Particu"ars that the argument stopped after the shots were fired
(/urther Particu"ars0 Ad #aragra#h 8.20 8.3 and 8.80 #ar 1,.
23. *r Sti##0 Pr!ess!rs Saa$man and :!tha agreed that the *eceased was
ata""$ w!unded and c!u"d n!t ha'e screamed ater the !ur sh!ts.
23. :e!re the sh!ts the Accused sh!uted !r the intruder4s t! "ea'e the
h!use. Ater the sh!ts and u#!n rea"ising what had ha##ened he was
sh!uting !r he"#0 screaming !r cr$ing !ut "!ud.
28. The screaming ater the gunsh!ts (the irst s!unds, heard b$ witnesses
c!u"d !n"$ ha'e been the Accused0 as he was the !n"$ !ther #ers!n in
the h!use. @is sh!uting and screaming was t! be e9#ected ater he had
Page 1-
disc!'ered that he had sh!t the *eceased.
21. The sh!uting at the intruder4s be!re the irst s!unds (the sh!ts, was
directed at the intruder4s and n!t t! a"ert !r ca"" !r he"# r!m the
neighb!urs !r #e!#"e "i'ing in the area. N! d!ubt0 the screaming !r
cr$ing !ut "!ud be!re the sec!nd s!unds must ha'e been much "!uder0
as its #ur#!se was t! see% he"# r!m #e!#"e !utside his h!use as this
had been heard as ar awa$ as 155 metres.
25. This e9#"ains wh$ >rs 'an der >erwe and >rs Sti## !n"$ heard the
screaming4cr$ing !ut "!ud ater the irst s!unds.
2.. The act that >rs 'an der >erwe heard the ema"e '!ice ta"%ing ar awa$0
and n!t sh!uting0 is c!nsistent with the act that the ema"e '!ice came
r!m a dierent "!cati!n.
22. I >rs 'an der >erwe had heard the ema"e '!ice c!ming r!m the
directi!n ! the Accused7s h!use0 she w!u"d n!t ha'e m!'ed in the
!##!site directi!n ! the Accused7s h!use t! tr$ and "isten t! where the
'!ice came r!m. She m!'ed in the directi!n ! the /arm Inn0 which is in
the !##!site directi!n (r!m the Accused7s h!use,.
3-. On the State7s !wn case0 the screaming4sh!uting4cr$ing !ut "!ud ater
the irst s!unds c!u"d !n"$ ha'e endured !r a ma9imum ! ab!ut 8
minutes #ri!r !3:1) (the time ! the sec!nd s!unds, as0 acc!rding t! the
State witnesses0 the screaming st!##ed at the time ! the sec!nd
s!unds ha'ing !ccurred.
Page 11
31. The a!reg!ing c!ntenti!n must be c!rrect as it d!es n!t !n"$ acc!rd
with the Accused7s e'idence and his estimated time ! ab!ut 8 minutes
inter'a" between the irst and sec!nd s!unds (&ec!rd 13..0 "ines 12C2-,0
but a"s! with the act that he was sti"" cr$ing !ut "!ud4screaming when he
struc% the d!!r with the cric%et bat. The Accused was in an$ e'ent
sh!rt"$ thereater !n the te"e#h!ne t! E!han Stander (!3:1")0 t! 211
(3:!)0 t! securit$ (!3:1)0 the ca"" r!m securit$ (!3:, and at
a##r!9imate"$ !3:9 E!han Stander0 Carice Di"A!en (Stander, and Peter
:aba (securit$, !bser'ed the Accused carr$ing the *eceased d!wn the
stairs0 whereater the Accused was in the #resence ! Carice Di"A!en0
E!han Stander0 *r Sti##0 the #aramedics and the #!"ice.
32. This c!nirms that the !n"$ time the immediate neighb!urs c!u"d ha'e
heard screaming4sh!uting4cr$ing !ut "!ud0 was during the ab!ut 8
minutes be!re !3:1). <e dem!nstrate in detai" be"!w that the cr$ing
!ut "!ud heard b$ the immediate neighb!urs !ccurred at the same time
as the screaming heard b$ the !ur State witnesses.
33. The immediate neighb!urs reerred t! the screaming as cr$ing !ut "!ud.
This a"s! acc!rded with the e'idence ! >rs 'an der >erwe wh! th!ught
that it was a w!man cr$ing !ut "!ud0 h!we'er0 her husband t!"d her that
it was the Accused. The cr$ing a"s! c!n!rms t! >s >a%wanaFi7s
aida'it0 reerred t! in the e'idence ! >rs Sti##0 which was heard at the
same time *r and >rs Sti## heard the female screaming.
33. <e wi"" a"s! dem!nstrate hereunder that there are c!n"icting and
c!ntradict!r$ 'ersi!ns b$ witnesses c!rr!b!rating c!ncerning the
Page 12
screaming0 which wi"" in an$ e'ent n!t ma%e it #!ssib"e !r the C!urt t!
ind0 !n an a##"icati!n ! the #rinci#"es re"e'ant t! circumstantia"
e'idence0 that the !n"$ reas!nab"e inerence is that it was the *eceased
screaming and that that inerence e9c"udes a"" !ther reas!nab"e
inerences that it was the Accused wh! was screaming.
38. The diicu"ties inherent in the State7s case caused it t! 'aci""ate between
c!n"icting 'ersi!ns in its !wn case.
31. The 'aci""ati!n is a c!nseBuence ! the State7s c!ntradict!r$ a##r!ach:
31.1 c!ncerning >rs 'an der >erwe7s e'idence that the gunsh!ts
si"enced the ema"e '!ice (the argument, (which were the irst
s!unds,?
31.2 b$ c!ntending that the sec!nd s!unds were the gunsh!ts0
c!ntrar$ t! >rs 'an der >erwe7s e'idence?
31.3 b$ c!ntending that the gunsh!ts si"enced the screaming (but the
screaming !ccurred ater the irst s!unds,?
31.3 b$ re"$ing !n C!"!ne" Dermeu"en7s e'idence that the t!i"et d!!r
was irst damaged b$ the sh!ts and thereater b$ the cric%et bat?
31.8 n!twithstanding the a!reg!ing0 t! c!ntend that the sec!nd
s!unds were the gunsh!ts and in the #r!cess t! c!m#"ete"$ ai"
t! e9#"ain the !ccurrence ! the irst s!unds.
35. The 'aci""ati!n and c!n"ict in the State7s a##r!ach was caused b$ its
Page 13
re"iance !n dolus directus.
3.. The State7s re"iance !n dolus directus ar!se in the bai" a##"icati!n in the
!rm ! an a""eged #remeditated murder0 which is dolus directus with #reC
#"anning !r #remeditati!n.
32. In !rder t! prove the #remeditated murder in the bai" a##"icati!n0 the
State ca""ed the then In'estigating Oicer0 @i"t!n :!tha0 wh! inter alia
testiied that acc!rding t! !rensic tests:
32.1 the Accused had his #r!sthesis attached when he ired the sh!ts
(E9hibit * #age 11- and 115,? and
32.2 the Accused st!!d ab!ut 1.8m r!m the t!i"et d!!r0 when he ired
the sh!ts. (E9hibit * #age 1-1,
3-. The 'ersi!n ad'anced b$ the State at the bai" hearing0 as reerred t!
ab!'e0 was a"se and sh!wn t! be a"se in the tria". At the time ! the
bai" a##"icati!n there was n! e'idence0 !rensic !r !therwise0 as
c!ntended !r b$ @i"t!n :!tha0 that the Accused had his #r!sthesis !n
when he ired the sh!ts and4!r that he st!!d ab!ut 1.8m r!m the t!i"et
d!!r when he ired the sh!ts.
31. On the c!ntrar$0 at the tria" Ca#tain >angena ga'e e'idence that the
Accused was !n his stum#s when he ired the sh!ts (&ec!rd #age 1-3.0
"ines 11C1. and 23C28 = 1-320 "ine 1,.
32. As t! the c!ntenti!n that the Accused was ab!ut 1.8m r!m the t!i"et
Page 13
d!!r when he ired the sh!ts:
32.1 Ca#tain >angena0 in his re#!rt and during his e'idence0 stated
that the Accused c!u"d ha'e been an$where between the
#assage wa"" (at the entrance t! the bathr!!m, and n!t "ess than
1- cm r!m the t!i"et d!!r at the time when he ired the sh!ts
(&ec!rd0 >angena &e#!rt0 E9hibit DD0 #ar 1..3.2, (&ec!rd 1-330
"ines 12C28,.
32.2 The a!reg!ing was a"s! #art ! the /urther Particu"ars and
/urther and :etter Particu"ars where the State a""eged that the
shooter was more likely not wearing his prosthetic legs and fired
from a distance greater than 60 cm from the toilet door(/urther
Particu"ars0 Ad #ara 5.1 = 5.5 and 15.5 t! 15..0 /urther and
:etter Particu"ars0 Ad #ar 5 and 11 and 15,.
32.3 In cr!ssCe9aminati!n0 Ca#tain >angena c!nceded that the
Accused7s 'ersi!n that he was n!t standing ab!ut 1.8 metres
r!m the t!i"et d!!r0 but at the entrance t! the bathr!!m0 was
m!re #r!bab"e i regard is had t! the #!siti!n ! tw! ! the em#t$
cartridges !und0 !ne in the #assage and !ne in the entrance t!
the bathr!!m = (&ec!rd0 #age 1-120 "ines 11C21, and the act
that the #rimer residue (discharged when a sh!t is ired, !und in
the 'icinit$ ! the "ight switch at the entrance t! the bathr!!m
where acc!rding t! the Accused he was when he ired the sh!ts
(&ec!rd0 #age 1-310 "ines 11C280 1-320 "ines 1C230 1-120 "ines 1C
1-,.
Page 18
32.3 In act0 when Ca#tain >angena was as%ed !n what basis (!r
!rensic tests, @i"t!n :!tha c!u"d sa$ that the Accused was
a##r!9imate"$ 1.8 metres r!m the t!i"et d!!r when he ired the
sh!ts0 he said that he had n! idea where it came r!m. (&ec!rd
1-130 "ines 18C2-,.
33. Patent"$0 it was 'er$ im#!rtant !r the Accused t! e9#!se the u"" e9tent
! the a"se e'idence b$ @i"t!n :!tha t! sh!w that a strateg$ was a##"ied
t! a"se"$ incriminate him !n a charge ! #remeditated murder0
n!twithstanding the %n!wn absence ! acts t! c!rr!b!rate such a""eged
#remeditated murder.
33. It was n!t a rea" !#ti!n !r the Accused t! ca"" @i"t!n :!tha as his a"se
e'idence in tr$ing t! incriminate the Accused0 was a c"ear indicati!n that
he w!u"d n!t gi'e truthu" e'idence !n beha" ! the Accused.
38. As @i"t!n :!tha was a"s! the in'estigating !icer ater the bai"
a##"icati!n (he was !n"$ subseBuent"$ re#"aced b$ Ca#tain 'an Aardt,0 it
was im#!rtant that he be ca""ed b$ the State as a witness0 n!t !n"$ t! be
e9amined !n his a"se e'idence which as designed t! a"se"$ incriminate
the Accused at the bai" a##"icati!n0 but a"s! t! e9#!se his c!nduct during
the in'estigati!n. @is e'idence #r!'ed high"$ re"e'ant t! the
#reser'ati!n ! the scene0 #articu"ar"$ in the main bedr!!m.
31. C!"!ne" 'an &ensburg testiied that he was with @i"t!n :!tha in the main
bedr!!m ear"$ that m!rning. @e0 C!"!ne" 'an &ensburg0 then went t!
the guest bedr!!m (the irst bedr!!m ne9t t! the main bedr!!m,. It is
Page 11
un%n!wn where @i"t!n :!tha was at that stage as he remained in the
main bedr!!m when C!"!ne" 'an &ensburg went !utside !nt! the
ba"c!n$ and t! the guest r!!m ne9t d!!r. This was #ri!r t! the
#h!t!gra#her7s arri'a" !n the scene. (&ec!rd0 .310 "ines 11C28,.
35. N!twithstanding 'ari!us cha""enges #!sed b$ the deence at the
beginning and during the tria" !r @i"t!n :!tha t! be ca""ed (&ec!rd0 #age
.150 "ines 11C28 and 110 "ines 12C23 (#"ea e9#"anati!n,,0 as we"" as when
Dan &ensburg ga'e e'idence (&ec!rd0 # .150 "ines 11C23,0 the State
ai"ed t! d! s!. There is n! d!ubt that his e'idence was im#!rtant0 n!t
!n"$ t! acc!unt !r and e9#"ain his a"se e'idence0 but a"s! t! e9#"ain his
acti!ns in the main bedr!!m #ri!r t! the #h!t!gra#her ta%ing
#h!t!gra#hs ! the main bedr!!m.
3.. It is a"s! signiicant that the State was 'er$ se"ecti'e in ca""ing witnesses0
s! as t! endea'!ur t! a'!id %n!wn c!n"icts in the State7s case. This
was c!ntrar$ t! the #rinci#"e that the State must act with!ut ear0 a'!ur
!r #reAudice. &ather than #r!m!te the interests ! Austice0 it did a
disser'ice t! that which sh!u"d ha'e ser'ed the interests ! Austice.
32. /!r instance0 the State ca""ed witnesses0 wh! were #!siti!ned .- metres
and 155 metres res#ecti'e"$ r!m the h!use ! the Accused when the$
sa$ the$ heard a w!man screaming. @!we'er0 the State ai"ed t! ca""
the immediate neighb!urs ! the Accused0 as it rea"ised the$ w!u"d n!t
su##!rt the a""egati!n that a w!man was screaming.
8-. The State a"s! did n!t ca"" the #ers!n wh! was em#"!$ed b$ *r and >rs
Page 15
Sti##0 >s >a%wanaFi0 as a witness0 as she w!u"d a"s! n!t ha'e
su##!rted the State7s case (&ec!rd0 111-0 "ines 3C1-0 11530 "ines 2C280
11580 "ines 1C20 13230 "ine 28 = 13280 "ines 1C1,. This is des#ite the act
that >rs Sti## intr!duced >s >a%wanaFi7s e'idence.
81. The State ca""ed C!"!ne" 'an &ensburg0 wh! #retended0 c!ntrar$ t! the
aida'its in the State7s #!ssessi!n0 that he was the !n"$ #!"ice !icia"
wh! went u#stairs during the ear"$ the m!rning ! 13 /ebruar$ 2-13 with
@i"t!n :!tha (#ri!r t! the arri'a" ! the #h!t!gra#her,. This was n!t !n"$
in c!n"ict with his !wn aida'it0 but a"s! aida'its b$:
81.1 Sergeant Sebetha (&ec!rd .3-0 "ines 3C1. and .110 "ines 5C28?
.120 "ines 1C28? .130 "ines 1C28,?
81.2 Ca#tain >a"u"e%e (&ec!rd .130 "ines 1-C28? .130 "ines 1C28,?
81.3 Ca#tain 'an der >erwe (&ec!rd .130 "ines 1-C13,?
81.3 *etecti'e Sergeant Chau%e (&ec!rd .130 "ines 1-C13,?
81.8 *etecti'e >ashishi (&ec!rd .130 "ines 1-C13,? and
81.1 C!nstab"e Prins"!! (&ec!rd .130 "ines 1-C13,0
c!ntained in the P!"ice *!c%et0 wh! were a"" a'ai"ab"e State witnesses.
82. The State a"s! ca""ed the #h!t!gra#her0 <arrant Oicer Dan Staden0
wh! a"s! #r!essed n!t t! ha'e been acc!m#anied b$ !ther #!"ice
members when he t!!% the #h!t!gra#hs during the ear"$ m!rning
between ab!ut -1:-- and -5:-- (&ec!rd0 2130 "ines 11C22 and 2180 "ines
.C2 and 23C28? 2110 "ines 1C1 and 2820 "ines 11C28,. This was e9#!sed
t! be a"se. (&ec!rd 2.8C22-, (Ph!t!s .1 = .10 .50 250 2.0 1--0 1110
Page 1.
1120 1-3 in c!m#aris!n with I>6 835-0 831.0 83530 83580 8351,. In
#articu"ar0 the State ai"ed t! ca"" n!t !n"$ witnesses wh! were #resent
when he t!!% the #h!t!gra#hs0 but a"s! C!"!ne" >!tha wh! was a"s!
res#!nsib"e !r ta%ing #h!t!gra#hs at the same time as <4O Dan Staden
(&ec!rd 25.0 "ines 13C28? 2520 "ines 1C.,.
83. It is unair t! e9#ect the Accused t! ca"" #!"ice witnesses0 wh! made
statements as State witnesses0 as in such e'ent0 the Accused wi"" be
!rced t! assume the ris% that such witnesses ma$ acc!mm!date the
State in cr!ssCe9aminati!n.
83. An ad'erse inerence ma$ be drawn i a witness is a'ai"ab"e and
re"e'ant0 and he4she is n!t ca""ed. In this instance0 where witnesses were
a'ai"ab"e and ab"e t! e"ucidate the acts !r the State0 which was
abs!"ute"$ necessar$ in 'iew ! the c!n"icts in the State7s case0 the
State7s ai"ure t! ca"" th!se witnesses Austiies the inerence c!ncerning a
ear that such e'idence might e9#!se acts una'!urab"e t! !r might
e'en damage the State7s case
1
.
88. The "aw is c"ear. The #art$ !n wh!m the !nus rests (the State, ma$ ind
that a ai"ure t! ca"" a witness creates the ris% that the !nus wi"" bec!me
1
TSHISHONGA 7 MINISTER OF ,USTICE AND CONSTITUTIONAL DEVELOPMENT AND
ANOTHER !!) (4) SA 13( (LC) !!) (4) SA :1() PILLAY ,: GThe failure of a party to call a
witness is excusable in certain circumstances, such as when the opposition fails to make out
a prima facie case. ut an adverse inference must be drawn if a party fails to testify or
produce evidence of a witness who is available and able to elucidate the facts, as this failure
leads naturally to the inference that he fears that such evidence will expose facts
unfavourable to him, or even damage his case. That inference is strengthened if the
witnesses have a public duty to testify.!
NTSOMI 7 MINISTER OF LA% AND ORDER 1""! (1) SA (1 (C): ;"t is generally true that if
a party fails to place the evidence of a witness who is available and able to elucidate the facts
before a trial court, such failure leads naturally to the inference that he fears that such
evidence will expose facts unfavourable to him.!
Page 12
decisi'e
2
in which e'ent the State0 bearing the !nus0 might n!t be ab"e t!
c!n'ince a C!urt that it has discharged the !nus
3
.
81. /urtherm!re0 Secti!n 152(3, ! the C!nstituti!n #r!'ides that:
#ational legislation must ensure that the prosecuting authority
exercise its functions without fear, favour or pre$udice.
85. The nati!na" "egis"ati!n gi'ing eect t! Secti!n 152(3, ! the C!nstituti!n
is the Nati!na" Pr!secuting Auth!rit$ Act 32 ! 122. ()NPA Act+,. Secti!n
32(1,(a, ! the NPA Act inc!r#!rated this !b"igati!n.
8.. Our case "aw ma%es it c"ear that t! ensure a air tria":
8..1 Pr!secut!rs must be !bAecti'e in regard t! the interests ! the
'ictim0 s!ciet$ and the Accused.
3
8..2 The right t! a air tria" embraces a c!nce#t ! substanti'e
airness.
8
2
RALIPHAS%A 7 MUGIVHI AND OTHERS !!. (4) SA 1(4 (SCA)!!. (4) SA :1(.
SNYDERS A,A : )The party on whom the onus rests has no greater obligation to call a
witness, but may find that a failure to call a witness creates the risk of the onus proving
decisive.
3
P4<7= C/01><8 >?@6 /A A568 M0B?3365 E8 D?CC?B 7 A22/416=#G6164?8 A/4 P?86@2<16 and
Canadian cases inc"uding L63?= 7 TB6 *<1D and R 7 Y6C6@. In the Hebes matter >cIntire E
said:
%The &rown has a discretion as to which witnesses it will call in presenting its case to the
court. This discretion will not be interfered with unless the &rown has exercised it for some
obli'ue or improper reason( see )emay v The *ing, supra. #o such improper motive is
alleged here. +hile the &rown may not be re'uired to call a given witness, the failure of the
&rown to call a witness may leave a gap in the &rown%s case which will leave the &rown%s
burden of proof undischarged and entitle the ,ccused to an ac'uittal. "t is in this sense that
the &rown may be expected to call all witnesses essential to the unfolding of the narrative of
events upon which the &rown%s case is based.7
3
C?43<>B686 7 M<1<@264 /A S?A62= ?15 S6>04<2= ?15 A1/2B64 (C61246 A/4 A::8<65 L6D?8
S205<6@ <1264761<1D) 2--1 (3, SA 23. CC
8
S 7 $03? ?15 O2B64@ 1228 (2, SA 132 CC (#ar 18,
See a"s! : S 7 DE0F05? ?15 O2B64@G S 7 T@B<8/ 2--- (SAC&, 333 (CC,
Page 2-
8..3 The State is reBuired t! "ead b$ e9am#"e.
1
8..3 The #r!secut!r d!es n!t !n"$ re#resent the interests ! the
State0 but he4she a"s! has a dut$ t!wards the Accused t! see
that an h!nest #ers!n is n!t c!n'icted and that the #ur#!se ! a
crimina" #r!secuti!n is n!t t! !btain a c!n'icti!n? it is t! "a$
credib"e e'idence be!re the C!urt. The r!"e ! the #r!secuti!n
e9c"udes an$ n!ti!n ! winning !r "!sing.
5
82. As such0 the State7s ai"ure t! ca"" materia" witnesses #reAudiced the
Accused and is a re"e'ant act!r t! be c!nsidered in assessing the
e'idence. A crimina" matter is n!t a game t! determine a winner !r "!ser.
/airness0 !bAecti'it$ and #r!secut!ria" duties made it im#erati'e !r the
State n!t t! ha'e se"ected witnesses good !r the State and ign!re
!thers bad !r the State.
1-. The State7s ai"ure t! ca"" materia" witnesses0 #articu"ar"$ #!"ice
witnesses0 must ha'e the eect t! negating inerences the State see%s
t! re"$ u#!n0 such as:
1-.1 that the scene was as is de#icted in the #h!t!gra#hs ! Dan
Staden?
1-.2 that !ther #!"ice members did n!t g! u#stairs #ri!r t! C!"!ne"
1
M/B?3365 7 P46@<5612 /A 2B6 R6:0C8<> /A S/02B AA4<>? 2--1 (3, SA .23 CC at #ara 1.
5
B/10D8< ?15 A1/2B64 7 D6:02= N?2</1?8 D<46>2/4 /A P0C8<> P4/@6>02</1@ ?15 O2B64@
2-1- (2, SAC& 133 (T,
&ompare also the $udgments of the courts of the -nited .tates of ,merica in, for instance,
erger v -nited .tates /01 -. 23 450617 at 338 9eople v :immer 15 #; /d 600 450307 at
606.
Page 21
'an &ensburg and @i"t!n :!tha ha'ing d!ne s!0 and #ri!r t! the
#h!t!gra#her ha'ing ta%en #h!t!gra#hs.
11. The C!urt cann!t acce#t that the scene as de#icted in the #h!t!gra#hs
resemb"es the main bedr!!m as it was !und0 in the ace ! a c"ear
indicati!n that !ther #!"ice members were at the scene and ma$ ha'e
disturbed the scene.
12. The State cann!t a'!id !r circum'ent its res#!nsibi"ities b$ ma%ing
witnesses a'ai"ab"e0 #articu"ar"$ when the$ are #!"ice witnesses.
13. Ins!ar as the State s!ught t! re"$ !n a rageCt$#e #ers!na"it$ ! the
Accused and a mani#u"ati'e re"ati!nshi#0 which c!u"d ha'e been
c!nduci'e t! the intenti!na" %i""ing ! the *eceased !""!wing the a""eged
argument0 we c!nc"usi'e"$ dem!nstrate hereunder that the !##!site
was true:
13.1 The re"ati!nshi# was n!t ab!ut the Accused7s !wn interests and
him mani#u"ating the *eceased0 n!r was it an abusi'e
re"ati!nshi#.
13.2 The c!ntrar$ is sh!wn hereunder.
13.3 The Accused was n!t sh!wn and n!t !und t! be a ma"ingerer0
narcissist0 with a rageCt$#e #ers!na"it$0 n!r t! be a #ers!n with
an e9#"!si'e and aggressi'e #ers!na"it$.
13. <e wi"" a"s! dem!nstrate hereunder that the Accused a"s! did n!t act
Page 22
with dolus eventualis in res#ect ! the *eceased.
18. The Accused7s e'idence was c!nsistent that he had th!ught that the
*eceased was in the bedr!!m when he discharged the sh!ts. @is
c!nduct immediate"$ be!re and ater the sh!!ting su##!rts his 'ersi!n.
11. It c!u"d there!re n!t be suggested that the Accused !resaw the
#!ssibi"it$ that the *eceased was in the t!i"et and that he rec!nci"ed
himse" with that #!ssibi"it$.
15. The State7s re"iance !n err!r in persona is "ega""$ mis#"aced as wi"" be
sh!wn hereunder.
1.. The State in act attem#ts t! intr!duce the d!ctrine ! transerred
ma"ice4intent which d!es n!t !rm #art ! !ur "aw !r at "east the "ast 5-
$ears.
12. <e wi"" a"s! sh!w that the Accused ired the sh!ts as a c!nseBuence !
an increased start"e res#!nse0 which is a re"e9i'e res#!nse0 negating
either the actus reus, but m!re #r!bab"$ negates crimina" ca#acit$.
5-. <e wi"" sh!w that i the C!urt were t! ind that the sh!!ting was n!t a
re"e9i'e res#!nse0 then it c!u"d !n"$ ha'e been in #utati'e #ri'ate
deence as the Accused subAecti'e"$ be"ie'ed he was #r!tecting himse"
and the de.
51. <e wi"" a"s! sh!w that the Accused is n!t gui"t$ ! cu"#ab"e h!micide !n
the basis that his c!nduct c!n!rmed with the c!nduct ! the reas!nab"e
Page 23
#ers!n with a simi"ar disabi"it$ acting in the same circumstances.
52. E'ident"$0 the State h!#ed t! b!"ster its case (!n murder, b$ intr!ducing
c!unts 2 t! 3.
53. C!unts 2 t! 3 e"" within the Aurisdicti!n ! the 6auteng ;!ca" *i'isi!n
(E!hannesburg,0 but were m!'ed t! the Aurisdicti!n ! the 6auteng
Pr!'incia" *i'isi!n (Pret!ria, in terms ! Secti!n 111 ! the Crimina"
Pr!cedure Act 81 ! 1255.
53. @!we'er0 in A22/416=#G6164?8 N/42B641 C?:6 7 B4HB1@
.
it was he"d
that a c!n'icti!n !n !ne charge cann!t be used !r the #ur#!se !
#r!'ing an!ther charge.
58. It !""!ws that a c!n'icti!n !n an$ ! c!unts 2 t! 3 ma$ n!t be used t!
prove0 c!unt 1 (murder,.
51. <ith the ab!'e in mind0 we #r!ceed t! dea" with the merits !r urther
demerits ! the charge ! murder.
ANALYSIS OF COUNT 1 MURDER
I124/50>2</1
55. As stated ab!'e0 the State e"ected t! #r!ceed with the charge ! murder
with dolus directus as the !rm ! intent. The State #remised its case !n
three #rinci#a" issues:
.
12.8 (3, SA 1.. A. The A##e""ate *i'isi!n in B4HB1@ did n!t a##r!'e and in act !'erru"ed S
7 *B?1=?:? 1252 (1, SA .23 (A, at .32 : = ".3- : and .3- in fin = .31 A where the C!urt (in
*B?1=?:?)t!!% a c!n'icti!n !n !ne c!unt int! acc!unt t! #r!'e an!ther c!unt.
Page 23
55.1 an a""eged argument between the Accused and the *eceased0
a""eged"$ !r an h!ur be!re the sh!!ting0 which "ed t! the
sh!!ting?
55.2 that the *eceased a""eged"$ screamed be!re the sh!!ting?
55.3 the e'idence ! the Accused.
5.. P!ssib"$0 the State a"s! h!#ed t! disc!'er e'idence that the Accused
was aggressi'e0 mani#u"ati'e and a rageCt$#e #ers!na"it$0 wh! ma$
ha'e the #r!#ensit$ !r ris% t! %i"" his #artner in an intimate re"ati!nshi#.
<e sh!w c!nc"usi'e"$ hereunder0 in dea"ing with the re"ati!nshi# that the
!##!site is true.
52. <e wi"" dem!nstrate hereunder that the State7s case is n!t !n"$
#remised !n c!n"icting e'idence0 but that it is se"Cdestructi'e. It is se"C
destructi'e in the sense that:
52.1 The irst case is that there was a ema"e ta"%ing ()the argument+,
be!re the sh!!ting0 and n!t screaming0 be!re the sh!ts. The
ema"e ta"%ing st!##ed because ! the sh!!ting. The sh!!ting in
this case was the irst s!unds.
52.2 The sec!nd case is there was an9i!us and earu" screaming
be!re the sh!ts and the screaming st!##ed because ! the
sh!!ting. The sh!!ting in this case was the sec!nd s!unds.
52.3 The third se"Cdestructi!n is t! be !und in the State7s !wn case
Page 28
that the d!!r was irst damaged b$ the sh!ts and subseBuent"$
b$ the cric%et bat. @!we'er0 the State e"ected the sec!nd
s!unds t! be the sh!ts and the irst s!unds (a"s! s!unding "i%e
sh!ts, remain a m$ster$0 as the irst s!und !n the State7s
'ersi!n0 c!u"d n!t be the cric%et bat.
.-. The charge ! murder wi"" be dea"t with under the !""!wing headings:
.-.1 ;ega" Princi#"es a##"icab"e?
.-.2 The times ! the chr!n!"!g$ ! materia" e'ents during the ear"$
m!rning h!urs ! 134-242-13 (time "ines,?
.-.3 The State7s re"iance !n:C
.-.3.1 The a""eged argument?
.-.3.2 The status ! the irst s!unds and the sec!nd s!unds?
.-.3.3 The a""eged screams b$ the *eceased?
.-.3.3 The &e"ati!nshi# between the Accused and
*eceased?
.-.3 The Accused7s 'ersi!n?
.-.8 >urder = dolus directus?
.-.1 >urder C <olus eventualis8
Page 21
.-.5 =rror in 9ersona and the *!ctrine ! Transerred >a"ice?
.-.. >urder C Putati'e Se" *eence8
.-.2 Cu"#ab"e @!micide?
LEGAL PRINCIPLES APPLICABLE TO THE ONUS
.1. A number ! e'identia" #rinci#"es as #r!n!unced u#!n b$ !ur C!urts0
re"e'ant t! the !nus t! be discharged b$ the State0 ind a##"icati!n in this
matter.
.2. The m!st im#!rtant "ega" #rinci#"e in this matter is the reBuisite "ega"
a##r!ach t! circumstantia" e'idence in crimina" matters0 as the State7s
case is #remised !n circumstantia" e'idence.
.2.1 <hen the State re"ies !n circumstantia" e'idence0 it d!es s! b$
see%ing t! re"$ !n inerences t! be drawn r!m the indirect !r
circumstantia" e'idence0 s! as t! arri'e at a c!nc"usi!n that the
!n"$ reas!nab"e inerence in the circumstances0 is that the
Accused intended t! %i"" the *eceased.
.2.2 The inerence which the State see%s t! re"$ !n0 w!u"d
Austi$4su##!rt a c!n'icti!n0 !n"$ i:
57 the inference sought to be drawn must be consistent with all
the proved facts. "f it is not, the inference cannot be drawn.
/7 The proved facts should be such that they exclude every
Page 25
reasonable inference from them save the one sought to be
drawn. "f they do not exclude the other reasonable inferences,
then there must be a doubt whether the inference sought to be
drawn is correct.
0
(em#hasis su##"ied,
.3. The !nus is !n the State t! #r!'e the gui"t ! the Accused be$!nd a
reas!nab"e d!ubt. This means that the Accused is entit"ed t! be
acBuitted i it is reas!nab"$ #!ssib"e that he might be inn!cent.
1-
.3. The Accused d!es n!t ha'e t! c!n'ince the C!urt ! the truth ! his
e9#"anati!ns. The C!urt must be satisied0 n!t !n"$ that his e9#"anati!n
is im#r!bab"e0 but that it is be$!nd a reas!nab"e d!ubt a"se.
11
2
R 7 B8/3 1"3" AD 1.. ?2 !#3 %?26436=64 AR
1-
S 7 V?1 564 M6=561 1""" () SA )" (%): ;The onus of proof in a criminal case is discharged
by the .tate if the evidence establishes the guilt of the ,ccused beyond reasonable doubt.
The corollary is that he is entitled to be ac'uitted if it is reasonably possible that he might be
innocent 4see, for example, > v <ifford 5062 ,< 620 especially at 626, 6367. These are not
separate and independent tests, but the expression of the same test when viewed from
opposite perspectives. "n order to convict, the evidence must establish the guilt of the
,ccused beyond reasonable doubt, which will be so only if there is at the same time no
reasonable possibility that an innocent explanation which has been put forward might be true.
The two are inseparable, each being the logical corollary of the other.
"n whichever form the test is expressed, it must be satisfied upon a consideration of all the
evidence. , court does not look at the evidence implicating the ,ccused in isolation in order to
determine whether there is proof beyond reasonable doubt, and so too does it not look at the
exculpatory evidence in isolation in order to determine whether it is reasonably possible that it
might be true. "n > v ?longwane 5010 467 ., 662 4,7, after pointing out that an ,ccused must
be ac'uitted if an alibi might reasonably be true, ?olmes ,@, said the following at 6A0?BB
6A5, which applies e'ually to any other defence which might present itself(
%ut it is important to bear in mind that in applying this test, the alibi does not have to be
considered in isolation. . . . The correct approach is to consider the alibi in the light of the
totality of the evidence in the case, and the &ourt%s impressions of the witnesses.%
11
R6I D<AA/45 (1"3)) AD 3)! ?2 :93)3: %"t is e'ually clear that no onus rests on the ,ccused to
convince the &ourt of the truth of any explanation he gives. "f he gives an explanation, even if
that explanation be improbable, the &ourt is not entitled to convict unless it is satisfied, not
only that the explanation is improbable, but that beyond any reasonable doubt it is false. "f
there is any reasonable possibility of his explanation being true then he is entitled to his
ac'uittal.%
Page 2.
.8. The C!urt d!es n!t ha'e t! be"ie'e the Accused7s 'ersi!n0 sti"" "ess has it
t! be"ie'e it in a"" its detai"s. It is suicient i there is a reas!nab"e
#!ssibi"it$ that it ma$ be substantia""$ true.
12
.1. The C!urt d!es n!t need t! reAect the State7s case in !rder t! acBuit the
Accused and it is n!t en!ugh i the Accused c!ntradicted !ther
acce#tab"e e'idence. I there e9ists a reas!nab"e #!ssibi"it$ that his
e'idence ma$ be true0 he is entit"ed t! the beneit ! the d!ubt.
13
.5. The e'idence ! the Accused cann!t be reAected !n the basis that it was
im#r!bab"e Aust because it was n!t in c!n!rmit$ with the e'idence gi'en
b$ the State witnesses.
13
... C!ntradicti!ns in the e'idence per se d! n!t "ead t! the reAecti!n ! such
e'idence as the c!ntradicti!ns ma$ sim#"$ be indicati'e ! an err!r.
18
12
R6I 7 M (1"4- AD 1!3 ?2 :9 1!))
13
S 7 *0C6F? 1". (1) SA (34 (%) ?2 (3)F#G: %+hether " sub$ectively disbelieve him is,
however, not the test. " need not even re$ect the .tate case in order to ac'uit him. "t is not
enough that he contradicts other acceptable evidence. " am bound to ac'uit him if there exists
a reasonable possibility that his evidence may be true. .uch is the nature of the onus on the
.tate. "n this @ regard, see, amongst other authorities, . v .mook 5065 4/7 9? ?//3 4,78
13
S 7 N5B8/70 1""1 () SACR 3 (%): ;The magistrate sought to deal with this matter by
re$ecting the appellant%s evidence on the basis that, insofar as it was not in conformity with the
evidence given by the two .tate witnesses called, it was improbable. The magistrate of
course correctly stated the test which was to be applied in situations such as this, and no
doubt derived from cases such as > v <ifford 5062 ,< 620, and put the matter, correctly in
my view, in these terms(
%#ow, the court is well aware that the onus of proof rests entirely on the .tate to prove its
case beyond reasonable doubt, and there is no onus on the ,ccused to disprove his guilt or
to prove innocence at all.
The court is also aware of the fact that, if the version that is advanced by the ,ccused is
reasonably possibly true, the court, the ,ccused is entitled to his ac'uittal, although the court
does not necessarily believe what the ,ccused is saying.%
The magistrate appears then to have dealt with the matter on the basis of the probabilities or,
put differently, what was considered by the &ourt a 'uo to be the improbabilities in the version
of the ,ccused.!
18
S 7 O/@2B0<E61 1". (3) SA ()1 (T) ?2 ()-B#C:%&ontradictions per se do not lead to the
re$ection of a witness% evidence. ,s #icholas @, as he then was, observed in . v CosthuiDen
503/ 467 ., 125 4T7 at 126 E &, they may simply be indicative of an error. ,nd . . . not every
error made by a witness affects his credibility8 in each case the trier of fact has to make an
evaluation8 taking into account such matters as the nature of the contradictions, their number
and importance, and their bearing on other parts of the witness% evidence.%
Page 22
.2. It is n!t suicient !r a witness t! be credib"e0 a witness must a"s! be
re"iab"e.
11
.2.1 A witness ma$ be credib"e !r h!nest because ! his4her !wn
subAecti'e be"ies0 which he4she #ercei'es t! be c!rrect.
.2.2 @!we'er0 the e'idence ! an h!nest !r a seeming"$ h!nest
witness ma$ n!t be actua""$ c!rrect (and wi"" there!re be
unre"iab"e, as it ma$ either be c!ntaminated b$ acts
subseBuent"$ !btained !r b$ his4her #erce#ti!ns.
.2.3 Inre"iabi"it$ is genera""$ e9#!sed when seeming"$ truthu"
e'idence is in c!n"ict with the !bAecti'e acts !r #r!babi"ities0 !r
where the !bAecti'e acts e9#!se the inc!rrectness ! the
e'idence !r inaccuracies !r im#r!babi"ities in the e'idence.
.2.3 Inre"iabi"it$ wi"" !'erru"e credibi"it$ (h!nest$,.
15
2-. &e"iab"e and !bAecti'e e'idence ser'es as a sae measurement t! weigh
the acc!unts ! witnesses t! determine whether the acc!unts !
11
S 7 ,?1@6 V?1 R61@C04D ?15 A1/2B64 !!" () SACR 1- (C): ;)ogic dictates that, where
there are two conflicting versions or two mutually destructive stories, both cannot be true.
Cnly one can be true. &onse'uently the other must be false. ?owever, the dictates of logic do
not displace the standard of proof re'uired either in a civil or criminal matter. "n order to
determine the ob$ective truth of the one version and the falsity of the other, it is important to
consider not only the credibility of the witnesses, but also the reliability of such witnesses.
=vidence that is reliable should be weighed against the evidence that is found to be false and
in the process measured against the probabilities. "n the final analysis the court must
determine whether the .tate has mustered the re'uisite threshold B in this case proof beyond
reasonable doubt. 4.ee = . v .aban en %n ,nder 500/ 457 .,&> 500 4,7 at /06$ B /0Ab8 .
v Fan der Geyden 5000 457 .,&> AA2 4+7 45000 4/7 ., 207 at AA0g B A10b8 and . v Trainor
/006 457 .,&> 61 4.&,7 4H/006I 5 ,ll ., A617 at para 0.7
15
S 7 NGXUM$A ?15 A1/2B64 !!1 (1) SACR 4!. (TF): ;There is no corroboration for the
identifying evidence of GDoxolo. ?e might have placed the two ,ccused in the roles of the
persons he saw, and honestly believed that he had seen them, through his strong imagination
and having seen them during the day in similar clothing. +ith identity evidence, the 'uestion
is not so much credibility as ob$ective reliability B ?iemstra 4op cit at 207.
Page 3-
witnesses meet the reBuisite thresh!"dC in this case #r!! be$!nd a
reas!nab"e d!ubt
1.
and in the c!nte9t ! circumstantia" e'idence0 that the
acc!unt gi'en b$ a witness is c!nsistent with a"" the #r!'ed acts t! the
e9tent that it e9c"udes e'er$ (!ther, reas!nab"e inerence.
21. A a"se e9#"anati!n b$ the Accused ma$ n!t be suicient t! Austi$ the
inerence that he4she had the intenti!n t! %i"" the *eceased.
21.1 A"th!ugh the nature !r e9tent ! a "ie is im#!rtant0 such a "ie is a
act!r which sh!u"d be #"aced in the sca"e ! adAudicati!n with
due !bser'ance ! the estab"ished ru"es ! "!gic re"e'ant t! the
#r!#er adAudicati!n ! circumstantia" e'idence as !rmu"ated in R
7 B8/3 (su#ra,.
12
21.2 In S 7 S26=1C64D (su#ra,0 the C!urt ! A##ea"
2-
reerred with
a##r!'a" t! M?B?4?J 7 P?4?15?=? 1"3" NPD 3" where Eudge
/eetham at 233 he"d: J.ome innocent people meet accusations
by simply telling the truth. Cthers, who may be e'ually innocent
of the accusation, take refuge in some invented story, because
they are not satisfied that the truth alone would be sufficient to
carry conviction, and a"s!:
21.3 G//54<>B 7 G//54<>B 1"4- AD 3"! KB646 G4661C64D ,A (?2
3"-) he"d: J... in each case one has to ask oneself whether the
fact that a party has sought to strengthen his case by per$ured
1.
See ,?1@6 7?1 R61@C04D (supra7
12
S 7 S26=1C64D 1".3 (3) SA 14! (A))
2-
S26=1C64D (supra) ?2 14-
Page 31
evidence proves or tends to prove that his case is illBfounded,
and one should be careful to guard against the intrusion of any
idea that a party should lose his case as a penalty for per$ury.J
22. <ith the ab!'e "ega" #rinci#"es in mind0 the !bAecti'e acts as the$ re"ate
t! the timing ! the chr!n!"!g$ ! the e'ents0 during the ear"$ m!rning !
13 /ebruar$ 2-13 must be ana"$sed0 s! as t! weigh the a""egati!ns
made b$ the State0 against the !bAecti'e and acce#tab"e e'idence0 and
t! c!nsider the credibi"it$ and re"iabi"it$ ! witnesses.
CHRONOLOGY OF EVENTS (TIME LINES)
23. In !rder t! be re"iab"e0 the chr!n!"!g$ ! the e'ents0 with reerence t! the
re"e'ant times when the e'ents !ccurred0 must be measured against
!bAecti'e e'idence0 such as te"e#h!ne ca"" data and acce#tab"e and
re"iab"e e'idence.
23. I the chr!n!"!g$ ! e'ents is determined b$ means ! !bAecti'e and
acce#tab"e and re"iab"e e'idence0 it wi"" #r!'ide a useu" mechanism !r
measurement against which the e'idence ! witnesses sh!u"d be
measured !r weighed0 s! as t! a'!id a ris% that #ercei'ed h!nest$
c!ncea"s unre"iabi"it$ !r untruthu"ness.
28. In !rder t! determine0 as accurate"$ as #!ssib"e0 the dierent times when
materia" e'ents !ccurred during the ear"$ m!rning !n 13 /ebruar$ 2-130
the e'idence re"e'ant theret! wi"" be summariFed with s#eciic reerence
t! the times ! materia" e'ents0 which !ccurred during the ear"$ m!rning
Page 32
! 13 /ebruar$ 2-13.
21. /!r #ur#!ses ! determining when the materia" e'ents !ccurred0 it must
be b!rne in mind that :
21.1 it is n!t in dis#ute that the Accused ired !ur sh!ts?
21.2 that the Accused subseBuent"$ struc% the t!i"et d!!r with a
cric%et bat0 the "atter acti!n ha'ing enab"ed the Accused t!
rem!'e #ane"s r!m the d!!r in !rder t! gain access t! the t!i"et
s! as t! rem!'e the *eceased r!m the t!i"et?
21.3 there were tw! s!unds at dierent times0 b!th s!unding "i%e
gunsh!ts t! certain witnesses. The irst s!unds were described
as 3 !r 3 sh!ts and the sec!nd s!unds as 2C30 30 3 !r 3 t! 8 !r a
'!""e$ ! sh!ts.
25. In determining the dierent times ! the materia" e'ents (the time "ines,0
we ign!re c!ntradicti!ns unre"ated t! the acts necessar$ t! !bAecti'e"$
determine the time "ines0 un"ess such c!ntradicti!ns ha'e a bearing !n
the acce#tabi"it$ and re"iabi"it$ ! the e'idence.
THE CHRONOLOGY OF EVENTS RELEVANT TO THE EARLY HOURS OF
THE MORNING OF 14 FEBRUARY !13 (THE TIME LINES)
2.. T! a'!id an$ dis#utes0 !n"$ !r #ur#!ses ! determining the time "ines:
2..1 The irst sh!ts heard b$ *r and >rs Sti##0 >rs Dan der >erwe
and the !ne bang heard b$ >rs Nh"engethwa0 are reerred t! as
Page 33
the )irst s!unds+.
2..2 The subseBuent )sh!ts+4bangs4thuds0 heard b$ *r Sti##0 >rs
Sti##0 >rs :urger and >r E!hns!n are reerred t! as the )sec!nd
s!unds+.
22. The !bAecti'e e'idence re"ied u#!n !r #ur#!ses ! the time "ines
c!nsists ! :
22.1 The admitted te"e#h!ne ca""s as #er the Si"'erw!!ds Securit$
te"e#h!ne data (E9hibit J,?
22.2 The summar$ ! ca""s as #er a chart #re#ared b$ the P!"ice
(E9hibit KK8,?
22.3 The admitted te"e#h!ne ca"" data? and
22.3 The undis#uted testim!n$ ! witnesses0 with reerence t!
te"e#h!ne ca"" data?
22.8 The undis#uted Securit$ 6uard Trac% S$stem ()the S$stem+,
(E9hibit TTT,0 which was the s$stem !#erated b$ securit$ in the
Si"'erw!!ds Estate. In terms ! the securit$ #r!t!c!"0 the guards
!n dut$ acti'ated the s$stem at 'ari!us #!ints within the Estate0
as #r!! that the$ were d!ing their securit$ r!unds within the
Estate.
22.1 Indis#uted #h!t!gra#hs.
Page 33
DINNER (APPROXIMATELY !1:!! (ON 14 FEBRUARY !13) ACCORDING
TO THE STATE (AND 1":!!#!:!! ON 13 FEBRUARY !13, ACCORDING TO
THE ACCUSED)
1--. The time ! the dinner is in dis#ute. Acc!rding"$0 we dea" herein with the
materia" a""egati!ns re"e'ant t! the a""eged time ! the dinner0 t!
dem!nstrate that the a""eged time ! the )dinner+ !r "ast !!d inta%e at
a##r!9imate"$ !1:!!0 as a""eged b$ the State0 cann!t be re"iab"e and
d!es n!t meet the reBuisite standard ! !bAecti'it$ !r re"iabi"it$ t! !rm
#art ! the time "ines.
1-1. The State see%s t! #r!'e that a mea" was c!nsumed at ab!ut !1:!! t!
sh!w that the Accused and *eceased were sti"" awa%e at ab!ut !:!!0
s! as t! su##!rt the State in its a""egati!ns that an argument t!!% #"ace
between the Accused and *eceased0 which argument in turn ga'e rise
t! the sh!!ting ab!ut !ne h!ur "ater.
1-2. @!we'er0 in the State7s &e#"$ t! the /urther Particu"ars reBuested (ad
#aragra#hs 8.20 8.3 and 8.8,0 #aragra#h 1- there!0 the State7s case was
dierent. In #aragra#h 1- the State stated that The <eceased had
something to eat hours before she was killed.
1-3. This c"ear"$ dem!nstrates that the "ast !!d inta%e at ab!ut -1:-- was an
aterth!ught and it e9#"ains wh$ Pr!ess!r Saa$man a"s! did n!t dea"
with it in his #!stCm!rtem re#!rt.
1-3. The State is b!und t! its urther #articu"ars.
21
21
R 7 %<8F61 1238 E*; 231 at 283
See a"s! *u T!it et a" &ommentary on the &riminal 9rocedure ,ct at 13C25
Page 38
1-8. It must be stated that e'en i the *eceased c!nsumed !!d at ab!ut
-1:-- it d!es n!t Austi$ an inerence as the !n"$ reas!nab"e inerence0
e9c"uding a"" !ther reas!nab"e inerences:
1-8.1 that the Accused and the *eceased were ha'ing dinner0 as the
*eceased c!u"d ha'e had s!mething t! eat !n her !wn?
1-8.2 that the *eceased and the Accused were sti"" awa%e an h!ur
"ater at ab!ut -2:--?
1-8.3 that the Accused and the *eceased engaged in an argument
ater the !!d inta%e.
1-1. At best !r the State it w!u"d sh!w that the Accused and4!r the
*eceased were4was awa%e at -1:--.
1-5. @!we'er0 we wi"" dem!nstrate hereunder0 that the a""egati!n that )dinner+
was c!nsumed at !1:!! and that there was an )argument+ ab!ut !ne
h!ur "ater0 are at best s#ecu"ati'e and "ac%s c!genc$ and can ne'er
Bua"i$ t! be the !n"$ reas!nab"e inerence r!m the #r!'ed acts.
1-.. It is im#!rtant t! bear in mind that the 'ersi!n ! the Accused is the !n"$
'ersi!n a'ai"ab"e and the State7s endea'!ured re"iance !n dinner at
-1:-- is at best #remised !n circumstantia" e'idence. As such0 the
State7s asserti!n ! dinner at -1:-- must be the !n"$ reas!nab"e
inerence (e9c"uding a"" !ther reas!nab"e inerences,.
22
22
B8/3 supra
Page 31
1-2. The 'ersi!n ! the Accused in regard t! dinner is:
1-2.1 <hen he arri'ed h!me Aust ater 1.B!!(!n the 13
th
, the
*eceased was bus$ #re#aring !!d?
1-2.2 The$ had stirCr$ chic%en and 'egetab"es !r dinner (&ec!rd0
#age 11110 "ine 1C2, between 1"B!! and !B!!. (&ec!rd0 #age
131-0 "ine 5C12,.
1-2.3 The iPad acti'ities ! the Accused incidenta""$ sh!w that
between 1"B1! and !B!! there were n! acti'ities
rec!rded(E9hibit <<,. The Accused e9#"ained that the$ were
ha'ing dinner during that time. (&ec!rd0 #age 131-0 "ine 5C12,.
(This is !bAecti'e su##!rt !r the 'ersi!n ! the Accused,.
1-2.3 Thereater at ar!und a##r!9imate"$ !B!!0 the Accused and the
*eceased had a warm drin% in the main bedr!!m. (&ec!rd
13130 "ine 1-C11 and 13120 "ines 8C1,. The mugs sh!wn in
#h!t!gra#hs !n the bedside tab"es #r!'ide !bAecti'e e'idence t!
c!nirm this (Ph!t! 53,.
11-. The Buesti!n is whether the 'ersi!n ! the Accused in res#ect ! the time
! dinner was sh!wn t! be a"se be$!nd a reas!nab"e d!ubt.
C!n'erse"$0 the Buesti!n is whether the State has #r!'ed that the !n"$
reas!nab"e inerence is that the Accused and *eceased had c!nsumed
dinner at a##r!9imate"$ !19!! and that the State has e9c"uded an!ther
reas!nab"e inerence0 being that the Accused and the *eceased were
Page 35
ha'ing dinner at 12:--. I the State cann!t #r!'e the dinner time at
-1:-- as the !n"$ reas!nab"e inerence !n the e'idence0 then the State
has ai"ed t! #r!'e that dinner was at !1:!!.
111. I the State d!es n!t re"$ !n dinner b$ the Accused and *eceased0 but
as a "ast !!d inta%e b$ the *eceased0 then the State has a diicu"t$ as
!!d inta%e b$ the *eceased d!es n!t im#"$:
111.1 that the Accused was awa%e?
111.2 that it w!u"d ta%e a wh!"e h!ur (r!m -1:-- t! -2:--, t! c!nsume
the "ate night !!d inta%e s! as t! c!rr!b!rate an )argument+ at
ab!ut -2:--.
112. <ith the ab!'e diicu"ties (!r the State, in mind0 we reer t! the
e'idence.
113. The State see%s t! re"$ !n Pr!ess!r Saa$man7s e'idence !r the
c!ntenti!n that the Accused and the *eceased had )dinner+ at
a##r!9imate"$ -1:-- am !n 13 /ebruar$ 2-13.
113. @!we'er0 Pr!ess!r Saa$man7s e'idence !n"$ reers t! a )suggested+
"ast !!d inta%e b$ the *eceased0 and n!t t! an$thing that c!u"d be
c!nstrued as the Accused and *eceased ha'ing dinner.
118. <e dea"0 in s!me detai"0 with the e'idence ! Pr!ess!r Saa$man. A
#rLcis ! his e'idence is:
Page 3.
118.1 that the !n"$ e'idence he based his inerence !n0 was the
st!mach c!ntents?
118.2 he em#hasised that t! determine the time ! a "ast mea" inta%e0
was n!t e9act and de#ended !n man$ act!rs0 which he did n!t
ha'e %n!w"edge ! at the time?
118.3 his estimati!n ! 2 h!urs be!re her death0 is a #r!bab"e
#!siti!n0 but it c!u"d 'ar$ b$ an h!ur !r tw! in either directi!n0
which c!u"d ma%e the a##r!9imate time ! "ast !!d inta%e
between 23:-- and -1:--.
111. It is ! c!urse #!ssib"e (but high"$ un"i%e"$, that Pr!ess!r Saa$man ma$
be right0 which is n!t the test !r circumstantia" e'idence as Pr!ess!r
Saa$man7s e'idence is based !n inerence.
115. Pr!ess!r Saa$man testiied that0 in his e9#erience0 with "imited
reerence t! #ub"icati!ns !n gastric em#t$ing0 and because ! the
'!"ume ! the undigested !!d !und in the st!mach ! the *eceased0 he
would suggest that the *eceased c!nsumed her "ast mea"
a##r!9imate"$ tw! h!urs be!re her death (&ec!rd 8320 "ine 8C1,. This
w!u"d ma%e the a##r!9imate time ! )dinner+ !1:!! 4emphasis supplied7.
11.. On the e'idence the Accused went t! s"ee# irst. It is c!ncei'ab"e that
!n this basis the *eceased might ha'e had s!mething t! eat at 23:--.
112. @!we'er0 we wi"" dem!nstrate be"!w that e'en the timing ! 23:-- is
s#ecu"ati'e !r Aust a mere #!ssibi"it$.
Page 32
12-. Im#!rtant"$0 in drawing this inerence0 Pr! Saa$man had n! %n!w"edge
! the nature ! the !!d inta%e0 the '!"ume ! the !!d inta%e !r an$
!ther circumstances !r acts0 !ther than st!mach c!ntents0 which c!u"d
ha'e #"a$ed a r!"e in st!mach !r gastric em#t$ing.
121. @e a"s! did n!t c!nduct urther e9aminati!ns0 such as the !#ening ! the
du!denum0 s! as t! su##!rt his suggesti!n0 which he !ught t! ha'e
d!ne.
122. Acc!rding"$0 his suggesti!n ! a "ast !!d inta%e at ab!ut 23:-- !r ab!ut
-1:-- is #remised !n a sing"e #iece ! circumstantia" e'idence0 i.e.
st!mach c!ntents.
123. There!re0 the #rinci#a" Buesti!n is whether Pr!ess!r Saa$man7s
inerence0 based !n this sing"e as#ect0 Austiies a inding that the !n"$
reas!nab"e inerence is that the *eceased7s "ast !!d inta%e was at
a##r!9imate"$ 3:!! !r !1:!! and whether that inerence e9c"udes a""
!ther reas!nab"e inerences.
123. I n!t0 Pr!ess!r Saa$man7s e'idence w!u"d n!t meet the reBuisite #r!!
c!ncerning the acce#tabi"it$ ! circumstantia" e'idence.
128. It wi"" be dem!nstrated be"!w that Pr!ess!r Saa$man7s e'idence in this
regard cann!t be acce#ted as the !n"$ reas!nab"e inerence0 e9c"uding
a"" !ther inerences.
121. /urtherm!re0 he e9#"icit"$ stated that he c!u"d !n"$ #r!'ide a )#r!bab"e
time rame and it has t! be #reaced b$ sa$ing that it #r!bab"$ can 'ar$
Page 3-
b$ an h!ur !r tw! in either directi!n0 de#ending !n '!"ume0 t$#e ! !!d0
menta" state0 etcetera+. (&ec!rd 83-0 "ine 11C13, 4emphasis supplied7
125. It is im#!rtant t! #!int !ut that Pr!ess!r Saa$man at n! stage
endea'!ured t! c!n'ince the C!urt that his 'iews !n gastric em#t$ing0
and there!re his determinati!n ! the a##r!9imate time ! the "ast !!d
inta%e be!re death0 w!u"d !r c!u"d be the !n"$ reas!nab"e inerence0
e9c"uding a"" !ther reas!nab"e inerences.
12.. On the c!ntrar$0 Pr!ess!r Saa$man made it c"ear in his e'idence that
his 'iews e9#ressed b$ him was to some extent in terms of
probabilities, but " think it is important that the &ourt appreciate that
there may be interBindividual variations between myself and someone
else, but there may also be intraBindividual variations. (&ec!rd 8150
"ines 23C28 and 81.0 "ine 1,. Pr!! !n )#r!babi"ities+ is n!t the test in
crimina" #r!ceedings. (Em#hasis su##"ied,. @e a"s! reerred t! his
estimati!n as a probability position and n!t as the !n"$ reas!nab"e
inerence e9c"uding a"" !ther inerences (&ec!rd 8330 "ine 1,. 4=mphasis
supplied7
122. This e9#"ains wh$ Pr!ess!r Saa$man was mere"$ #re#ared t! )suggest+
that the *eceased had her "ast mea" a##r!9imate"$ tw! h!urs be!re her
death (&ec!rd 8320 "ine 8,.
13-. >!re!'er0 Pr!ess!r Saa$man made it c"ear that gastric em#t$ing was
n!t an e9act science and he acce#ted that varying time frames that
may be implicated. (&ec!rd 8150 "ine 23,
Page 31
131. This a"s! e9#"ains wh$ Pr!ess!r Saa$man said that his estimati!n c!u"d
#r!bab"$ 'ar$ b$ an h!ur !r tw! in either directi!n.
132. I0 !n Pr!ess!r Saa$man7s e'idence0 an h!ur !r tw! 'ariati!n in
estimated times in either directi!n0 is an acce#tab"e 'ariati!n !n the
)suggested+ time ! "ast !!d inta%e0 it c!u"d ta%e the #r!bab"e time !
"ast !!d inta%e b$ the *eceased t! a##r!9imate"$ 3:!!. This d!es n!t
assist the State in its )argument+ the!r$.
133. A#art r!m the act that Pr!ess!r Saa$man7s estimati!n has a #r!bab"e
'ariati!n by an hour or two in either direction the a""egati!n b$ the State
that the Accused an *eceased had )dinner+ at !1:!! deies "!gic and
#r!babi"ities0 i regard is had t! what is stated be"!w:
133.1 <hen the Accused arri'ed h!me0 Aust ater 1.:!!0 the *eceased
was bus$ #re#aring stirCr$ chic%en and 'egetab"es. (&ec!rd
13820 "ine 1 and 11110 "ine 1C2, This was n!t dis#uted b$ the
State in cr!ssCe9aminati!n ! the Accused.
133.2 On the State7s c!ntenti!n0 the Accused and *eceased w!u"d
then ha'e waited 5 h!urs (unti" !1:!!) t! ha'e dinner.
133.3 The Accused is a #r!essi!na" ath"ete and the *eceased was a
m!de". It d!es n!t ma%e sense that the$ w!u"d n!t ha'e had
dinner at a reas!nab"e time when the !!d was read$0 but w!u"d
ha'e waited !r 5 h!urs t! ha'e dinner at a##r!9imate"$ !1:!!.
133.3 On the State7s c!ntenti!n0 ater deciding n!t t! ha'e dinner when
Page 32
the !!d was #re#ared and read$0 the Accused and *eceased
must either ha'e "et the !!d in the %itchen !r ta%en it u#stairs t!
eat at a "ater.
133.8 The Accused and *eceased went u#stairs t! the main bedr!!m
at ar!und a##r!9imate"$ !:!! (&ec!rd 13110 "ines 5C., where
the$ had a h!t drin%. The mugs !n the tw! bedside tab"es
su##!rt the 'ersi!n ! the Accused in this regard (Ph!t! 53 and
81, (&ec!rd 13130 "ines 1-C12,.
133.1 On the State7s c!ntenti!n0 the Accused and the *eceased must
then ha'e returned t! the %itchen t! ha'e dinner at !1:!!, as
n!ne ! the #h!t!gra#hs ! the main bedr!!m de#ict an$ #"ates0
cut"er$ !r cr!c%er$ in the main bedr!!m (sa'e !r the mugs,.
The a!reg!ing ma%es n! "!gica" sense.
133.5 In cr!ssCe9aminati!n0 >r Ne" #ut it t! the Accused that whi"st the
*eceased was eating0 the$ were arguing and that was the
argument that >rs Dan der >erwe heard (&ec!rd 15210 "ines 22C
21 and 15250 "ines 1C2 and 12320 "ines 3C8,. This d!es n!t ma%e
sense as this w!u"d mean that the Accused and the *eceased
must ha'e had dinner at ab!ut !:!!0 which is inc!nsistent with
an$ #!ssib"e 'ersi!n #r!ered b$ Pr!ess!r Saa$man7s
e'idence.
133. A"th!ugh Pr!ess!r Saa$man )suggested+ that the "ast mea" was
c!nsumed a##r!9imate"$ tw! h!urs be!re her death (but that there
Page 33
c!u"d ha'e been a 'ariati!n ! the 2 h!urs !n his estimated time,0 his
e'idence that in the case ! a "ight mea" gastric em#t$ing c!u"d !ccur
within 2- t! 1.- minutes (&ec!rd 8120 "ine .C11, is c!ntradict!r$.
138. It is unc"ear wh$ Pr!ess!r Saa$man ign!red the act that !n his !wn
e'idence0 gastric em#t$ing in the case ! a "ight mea" c!u"d ta%e u# t!
three h!urs0 whi"st with!ut %n!wing the '!"ume ! the "ast mea" and what
the mea" c!m#rised !0 he estimated a tw! h!ur #eri!d #ri!r t! death as
ha'ing been the "ast !!d inta%e.
131. An added diicu"t$ with Pr!ess!r Saa$man7s e'idence is that he
testiied that due t! inter alia enF$mes and h$dr!ch"!ric acid in the
st!mach0 the #h$sica" #r!cess ! digesti!n did n!t st!# at the time !
death (&ec!rd 82-0 "ines 2C18,. The b!d$ ! the *eceased was !n"$
rerigerated at a##r!9imate"$ 11:4( (&ec!rd 22550 "ines 11C12,0 which
was ab!ut ten h!urs ater the "ast !!d inta%e estimated b$ Pr!ess!r
Saa$man. N!twithstanding0 there was sti"" rec!gniFab"e !!d c!ntent in
the st!mach0 an !ccurrence which in a##"$ing Pr!ess!r Saa$man7s
the!r$0 c!u"d n!t ha'e been #!ssib"e. Acc!rding t! Pr!ess!r ;undgren0
this dem!nstrated h!w s#ecu"ati'e the #r!cess and timing ! gastric
em#t$ing was (&ec!rd 22220 "ines 1C28,.
135. <hat is c"ear r!m the ab!'e is that0 based !n his !wn c!ncessi!ns0
Pr!ess!r Saa$man7s estimati!n was ne'er meant t! be the !n"$
reas!nab"e inerence c!ncerning the timing ! the "ast !!d inta%e.
13.. >!re!'er0 the acce#tabi"it$ ! Pr!ess!r Saa$man7s e'idence0 !r
Page 33
#ur#!ses ! satis$ing the standard "aid d!wn !r circumstantia"
e'idence0 was urther er!ded b$ the e'idence ! Pr!ess!r :!tha and
Pr!ess!r ;undgren.
132. Pr!ess!r :!tha made it c"ear that it was t!! ris%$ !r a #ath!"!gist t!
estimate the time ! "ast !!d inta%e with reerence t! gastric em#t$ing
(&ec!rd 13-10 "ines 1-C11,.Fery difficult for a pathologist to gain
expertise in this field.
13-. @e c!nceded that he c!u"d n!t sa$ that Pr!ess!r Saa$man was wr!ng
(&ec!rd 13220 "ines 11C11,. This c!ncessi!n d!es n!t mean that he was
acce#ting that Pr!ess!r Saa$man was right. It !n"$ means that
because ! the un%n!wn 'ariants !r act!rs the estimati!n. It ma$ be
right !r ma$ be wr!ng.
131. Pr!ess!r :!tha0 in his e'idence0 inter alia, reerred t! an artic"e b$
Eas!n Pa$neCE!nes0 /!rensic >edicine and C"inica" and Path!"!gica"
As#ects (E9hibit 666 and &ec!rd 13-30 "ines 12C28,0 t! dem!nstrate
the danger in re"$ing !n gastric em#t$ing in determining the time ! the
"ast !!d inta%e #ri!r t! death.
132. In the said #ub"icati!n Eas!n Pa$neCE!nes et al made it c"ear:
132.1 Kor estimating the time since death the volume of stomach
contents compared to the 'uantity and 'uality of the last meal
and transportation distance into the small intestine 4duodenum7
must be known. (Page 1-2 ! E9hibit 666,?
Page 38
132.2 The .tate of digestion and transportation rate of food from the
stomach into the duodenum depend on many ante mortem 4eg.
anatomical, physiological, psychological, pathological, food type7
factors which contribute to the great intraB and interBindividual
variability of gastric emptying. =stimations considering all
circumstances, should only be made with great reservation.
(Page 1-2 ! E9hibit 666,?
132.3 That only a rough estimation of time of death can be derived
from the examination of the stomach contents in the absence of
additional information (Page 11- ! E9hibit 666,?
132.3 The$ reerred t! tests c!nc"uded in 35 cases at aut!#s$ which
sh!wed that:
132.3.1 I 8-M ! the "ast mea" was !und in the st!mach0 the
"ast !!d inta%e was ab!ut three t! !ur h!urs #ri!r t!
death0 but n!t sh!rter than0 and n!t greater than 1-
h!urs?
132.3.2 I 2-M ! the "ast mea" was !und in the st!mach0 the
"ast !!d inta%e was #r!bab"$ within the h!ur #ri!r t!
death but n!t m!re than three t! !ur h!urs?
132.3.3 I !n"$ 3-M ! the "ast mea" is !und0 the "ast !!d
inta%e was ar!und !ur t! i'e h!urs0 #ri!r t! death0
but n!t sh!rter than !ne t! tw! and n!t "!nger than
1-C11 h!urs #ri!r t! death?
Page 31
133. Pr!ess!r Saa$man acce#ted the c!rrectness ! the artic"e (E9hibit D, b$
Eas!n Pa$ne E!nes(&ec!rd 83-0 "ines 18C28 and 8310 "ines 1C1.,0 but
#!inted !ut that si9 h!urs ni" #er m!uth0 acc!rding t! the artic"e0 w!u"d
ensure that the st!mach was em#t$ ater 1 h!urs (&ec!rd 8320 "ines 21C
28,. Pr!ess!r Saa$man c!nc"uded that the si9 h!ur ni" #er m!uth #eri!d
urthered the basis of my probability position in terms of this particular
patient. (&ec!rd 8330 "ines 1C2,.
133. It is unc"ear wh$ Pr!ess!r Saa$man s!ught t! re"$ !n 1 h!urs ni" #er
m!uth !r an em#t$ st!mach ater 1 h!urs0 reerred t! b$ Eas!n Pa$neC
E!nes0 t! su##!rt the time estimated b$ him. Pr!ess!r ;undgren
s#eciica""$ dea"s with the 1 h!ur #eri!d0 t! which we wi"" reer be"!w.
138. There are urther diicu"ties with Pr!ess!r Saa$man7s e'idence0
#articu"ar"$ with reerence t! Eas!n Pa$neCE!nes:
138.1 Pr!ess!r Saa$man did n!t %n!w the '!"ume ! the !!d inta%e0
which )must be %n!wn+ acc!rding t! Eas!n Pa$neCE!nes0 #age
1-2 ! E9hibit C.C.C.,?
138.2 Pr!ess!r Saa$man did n!t !#en the du!denum as #art ! the
#r!cess t! tr$ t! determine the time ! the "ast !!d inta%e and
the time ! death0 which w!u"d ha'e been a necessar$ ste# (See
Eas!n Pa$neCE!nes Page 1-2 ! E9hibit CCC,(&ec!rd 8220 "ines
12C28 and P!st >!rtem &e#!rt E9hibit :,?
138.3 Pr!ess!r Saa$man7s #!stCm!rtem re#!rt (E9hibit :, d!es n!t
e'en dea" with gastric em#t$ing times. This Austiies the inerence
Page 35
that0 subseBuent t! the #!st m!rtem ha'ing been c!nc"uded0 the
State s!ught t! re"$ !n gastric em#t$ing0 s! as t! estimate the
timing ! the "ast !!d inta%e b$ the *eceased0 n!twithstanding
the act that crucia" %n!w"edge (inter alia, the '!"ume ! !!d
inta%e0 t$#e ! !!d inta%e and the hea"th hist!r$ ! the
*eceased, was un%n!wn. It was then t!! "ate t! c!nsider ta%ing
im#!rtant ste#s0 such as the !#ening ! the du!denum.
131. Pr!ess!r :!tha0 in his e'idence0 reerred t! the m!st auth!ritati'e
te9tb!!% !n /!rensic Path!"!g$0 the Third Editi!n ! Nnight7s /!rensic
Path!"!g$ (E9hibit 666,. At #age .3 the "earned auth!r states : with
one exception, this controversial topic could be dismissed summarily as
being 'uite irrelevant. Kor many years pathologists have argued over the
reliability of the state of digestion of gastric contents as an indicator of
the time between the last meal and death, the leading case in modern
times being that of Truscott in &anada. There is now almost a
consensus that with extremely circumscribed exceptions, the method is
too uncertain to have much validity.
(Em#hasis su##"ied,
135. The e9ce#ti!n reerred t! b$ Nnight0 is i the time ! the "ast mea" is
%n!wn0 then the time ! death c!u"d be estimated (Nnight Page .3,.
13.. @a'ing regard t! a"" ! the ab!'e0 Pr!ess!r :!tha made it c"ear that !r
a #ath!"!gist t! tr$ and estimate the time ! the "ast mea" b$ "!!%ing at
the st!mach c!ntent was t!! ris%$ (&ec!rd 13-10 "ines 2C23,.
Page 3.
132. Pr!ess!r ;undgren su##!rted the e'idence ! Pr!ess!r :!tha in regard
t! gastric em#t$ing. She testiied that in her e9#erience0 as the @ead !
Anaesthesi!"!g$ at <its0 and a"s! at Chris @ani :aragwaneth Academic
@!s#ita"0 as we"" as her $ears in #ri'ate #ractice0 she was in a #!siti!n t!
state that the timing ! gastric em#t$ing was unre"iab"e (un#redictab"e,.
18-. Pr!ess!r ;undgren urther made it c"ear that as a c"inician0 she c!u"d
n!t su##!rt Pr!ess!r Saa$man7s estimati!n ! tw! h!urs (&ec!rd
22230 "ines 3C3,.
181. She e9#"ained that the minimum ! ni" #er m!uth !r si9 h!urs0 !r s!"id
!!d t! be em#tied gastric"$ was n!t abs!"ute0 but rather in the
e9#ectati!n that in the hopes that the stomach is empty after that six
hour period. (&ec!rd 22130 "ines 3C5,.
182. She e9#"ained that am!ng !ther things0 it de#ended !n the t$#e ! !!d
inta%e. She e9#"ained !r instance that 'egetab"es were indigestib"e and
ma$ de"a$ gastric em#t$ing (&ec!rd 22130 "ines 2C1-, (the dinner
c!nsisted ! stirCr$ chic%en and 'egetab"es,.
183. She urther e9#"ained that end!gen!us and e9!gen!us act!rs w!u"d a""
#"a$ a r!"e in determining the #r!cess ! gastric em#t$ing. End!gen!us
act!rs are act!rs within the b!d$ and e9!gen!us act!rs are act!rs
r!m !utside the b!d$ (&ec!rd 22130 "ines 1C2,.
183. Pr!ess!r ;undgren a"s! dea"t with act!rs de"a$ing gastric em#t$ing0
such as neur!"!gica"0 em!ti!na" and h!rm!na" interacti!n and #reC
Page 32
men!#ausa" w!man (the *eceased was #reCmen!#ausa", (&ec!rd 22130
"ines 1-C12,. She a"s! testiied that s"imming drugs c!u"d de"a$ gastric
em#t$ing (&ec!rd 22130 "ine 28 and 22180 "ine 1,.
188. There is n! e'idence whether !r n!t an$ ! the ab!'e act!rs (but !r
#reCmen!#ause, a##"ied t! the *eceased0 and in the absence ! that
%n!w"edge it is n!t #!ssib"e t! ma%e a re"iab"e estimati!n.
181. She urther e9#"ained that the '!"ume ! gastric c!ntents ater a mea"
'aried r!m #ers!n t! #ers!n0 r!m da$ t! da$ in the same #ers!n0 was
de#endent !n man$ act!rs and was n!t an e9act science (&ec!rd 22130
"ines 1C28 and 22130 "ines 1C28,.
185. She testiied that it was speculative to attempt to estimate when the
<eceased!s last food intake occurred, based purely on the presence of
gastric contents. (&ec!rd 22110 "ines 13C11,. 4emphasis supplied7
18.. She testiied that e'en ater a s"ice ! buttered t!ast and tea0 there ma$
be s!"ids "et in the st!mach ater !ur h!urs (&ec!rd 22220 "ines 13C11,.
182. She anecd!ta""$ reerred t! !ne ! her #atients0 wh! was !n a strict Gni"
#er m!uth7 !r eight h!urs be!re an !#erati!n0 wh! sti"" regurgitated
green st!mach c!ntents ater anaesthetics had been
administered(&ec!rd 22130 "ines 12C21,. Pr!ess!r ;undgren e9#"ained
that the ab!'e was n!t the !n"$ incident and that there had been man$
such incidents in her career (&ec!rd 22.30 "ines 18C12,.
11-. As stated ab!'e0 it in an$ e'ent remains un%n!wn whether !r n!t the
Page 8-
*eceased had an$ !!d inta%e subseBuent t! the Accused a""ing as"ee#.
This c!u"d be an$time between 3:!! t! !1:!!0 acc!rding t! Pr!ess!r
Saa$man7s suggested estimati!n.
111. <hat is e'ident r!m the ab!'e is that Pr!ess!r Saa$man7s e'idence0
(with due regard t! Pr!ess!rs :!tha7s and ;undgren7s e'idence, a""s
sh!rt ! the "ega" reBuisite t! e9c"ude !ther reas!nab"e inerences
re"e'ant t! the time ! the "ast inta%e ! !!d.
112. It is res#ectu""$ submitted that the dis#uted e'idence c!ncerning the
time ! the "ast inta%e ! !!d (!r dinner,0 and the c!n"icting e'idence
re"e'ant theret!0 ha'e the resu"t that the C!urt !ught n!t t! ind that the
!n"$ reas!nab"e inerence is that the Accused and the *eceased had
dinner !r that the *eceased had c!nsumed !!d an$ time between
3:!! 2/ !1:!!.
113. C!nseBuent"$0 the estimated time ! )dinner+0 as a""eged b$ the State0
d!es n!t Bua"i$ t! !rm #art ! the time chr!n!"!g$0 as the 'a"ue ! the
time chr!n!"!g$ is in the act that the times are su##!rted b$ !bAecti'e
e'idence !r re"iab"e and acce#tab"e e'idence0 s! as t! c!nigure a
re"iab"e measurement t! measure !ther e'idence against.
THE (ALLEGED) ARGUMENT (APPROXIMATELY #3AM)
113. Simi"ar"$0 it is necessar$ t! determine i the a""egati!n ! an argument
between the Accused and the *eceased0 at !:!! t! !3:!! 0 has
suicient c!genc$ s! as t! Bua"i$ as being the !n"$ reas!nab"e
Page 81
inerence0 e9c"uding a"" !ther inerences. I n!t0 the )argument+ and
a""eged time ! an )argument+ sh!u"d n!t be c!nsidered as !rming #art
! the time chr!n!"!g$0 as it c!u"d n!t be !bAecti'e"$ determined !r be
determined re"iab"$ b$ acce#tab"e e'idence.
118. The State a""eges that there was an argument between the Accused and
the *eceased0 which #receded and resu"ted in the sh!!ting. The State
c!ntends that the )argument+ was !'erheard b$ >rs Dan der >erwe
(&ec!rd 12310 "ines 12C2-,.
111. >rs Dan der >erwe7s e'idence d!es n!t #r!'e the e9istence ! an
argument0 sti"" "ess d!es her e'idence Austi$ the inerence0 as the !n"$
reas!nab"e inerence0 e9c"uding a"" !ther reas!nab"e inerences0 that
there was an argument between the Accused and the *eceased0 which
#receded and ga'e rise t! the sh!!ting.
115. :e!re c!nsidering the e'idence ! >rs 'an der >erwe0 it is necessar$ t!
c!nsider the /urther Particu"ars urnished b$ the State. In the State7s
&e#"$ t! the /urther Particu"ars reBuested !n beha" ! the Accused0 the
State re#"ied:
115.1 ,s the only reasonable inference on the facts available to the
.tate the motive of the ,ccused was to kill the <eceased. "t is
the .tate!s case that there was an argument between the
,ccused and the <eceased. The ,ccused killed the <eceased
because of the argument. The .tate is unaware of the exact
details of the argument or when it started (Ad #aragra#h 8.1,?
Page 82
4emphasis added7
115.2 The state relies on the evidence of =stelle Fan <er Gerwe.
<uring the early hours of 5A Kebruary she states she heard,
talking like fighting and a woman!s voice constantly talking.
.he formed the impression that the woman was arguing. This
stopped after the shots were fired (Ad #aragra#hs 8.20 8.3 and
8.8 #aragra#h 1,?
115.3 =stelle Fan <er Gerwe 4,07 and 4,0a7 heard the voice of a
woman that she perceived to be fightingB this had been
disclosed to the ,ccused. "t is the state!s case that the arguing
or fighting happened at the house of the ,ccused (Ad
#aragra#hs 1-.2.5 O 1-.2..,?
11.. In the &eBuest !r /urther and :etter Particu"ars the State re#"ied as
!""!ws with regard t! the a""eged argument:
11..1 +e repeat that we are not aware of the exact details of the
argument but are aware of a witness having heard a woman!s
voice and we will argue that by inference it was the voice of the
<eceased. +e are aware that witnesses heard a woman scream
before the shots were fired. +e are aware that the screams and
the woman!s voice stopped after the shots were fired. +e repeat
our response to paragraph 1./B1.1 here (Ad #aragra#h 8,.
4emphasis added7
112. <hat is stated in the /urther Particu"ars reerred t! in #aragra#h ..8.1
Page 83
ab!'e where the State states that the screams and the w!man7s '!ice
(ta"%ing, st!##ed ater the sh!ts.
15-. >rs 'an der >erwe7s e'idence was that there was n! screaming b$ a
w!man be!re the sh!ts. N!ne ! the witnesses made reerence t!
arguing and screaming (at the same time, be!re the irst s!unds.
151. In the Accused7s Sec!nd &eBuest !r /urther and :etter Particu"ars with
reerence t! the a""eged argument0 the State re#"ied:
151.1 "t is the .tate!s case that as the only reasonable inference from
the facts, there was an argument. +e are not aware of any of
the detail regarding the argument8 it may become clear during
the trial (Ad #aragra#h 2.80 #aragra#h 2.1,.
4emphasis added7
152. @!we'er0 >rs Dan der >erwe7s e'idence0 re"e'ant t! the a""eged
argument0 is inc!nsistent with the /urther Particu"ars. @er e'idence was
as !""!ws:
152.1 She w!%e u# at ar!und !1:(- (&ec!rd 1820 "ine 1,?
152.2 She heard the '!ice ! a w!man0 but it was ar awa$. (&ec!rd
11.0 "ines 1-C15? 15-0 "ines 21C23, She c!u"d n!t hear w!rds !r
"anguage. She had n! idea where the '!ice was c!ming r!m
but it was ar r!m their h!use (&ec!rd 15-0 "ines 13C18,.
152.3 The w!man7s '!ice was Buiet !r #eri!ds0 which c!u"d be
Page 83
inter'a"s ! 8 minutes !r 2- minutes (&ec!rd 11.0 "ines 23C28,.
152.3 She wanted t! ind !ut where the '!ice was c!ming r!m. She
"!!%ed !ut t!wards the /armCInn (which is in the !##!site
directi!n r!m the h!use ! the Accused,0 t! tr$ and ind !ut
where the '!ice was c!ming r!m (&ec!rd 1820 "ine 1.,.
152.8 <hat is interesting is that during her reCe9aminati!n0 when
as%ed in which directi!n she had "!!%ed during the ear"$
m!rning ! 13 /ebruar$ 2-130 ater hearing a w!man7s '!ice0
she testiied0 Karm "nns direction. She was then as%ed which
directi!n she had "!!%ed in !n 21 /ebruar$ 2-13 (the night the
deence team c!nducted s!und tests at the h!use ! the
Accused, she res#!nded0 Karm "nns direction and Cscar!s
house. (&ec!rd0 1580 Dan der >erwe0 "ines 1C8,. This in itse" is
an indicati!n that !n 13 /ebruar$ 2-13 she did n!t be"ie'e that
the ema"e7s '!ice emanated r!m the directi!n ! the Accused7s
h!use because at n! stage at that time did she (a"s!, "!!% in the
directi!n ! the Accused7s h!use.
4=mphasis supplied7
152.1 At ab!ut !3:!! she heard !ur gunsh!ts (&ec!rd 1820 "ines 12C
2-,0 which were c!nirmed b$ her husband t! be gunsh!ts
(&ec!rd 1110 "ines 2C1-,. The sh!ts were sh!rt"$ !ne ater the
!ther (&ec!rd 1110 "ines 1C3,.
152.5 C!ntrar$ t! the /urther Particu"ars:
Page 88
152.5.1 She c!u"d n!t sa$ she heard the ema"e '!ice sh!rt"$
be!re the gunsh!ts.
152.5.2 She c!u"d n!t sa$ i there was a "!ng #eri!d ! si"ence
be!re the sh!ts (&ec!rd 1120 "ines .C2,.
152.5.3 She did n!t hear a w!man screaming be!re the
sh!ts. (&ec!rd 1120 "ines 23C28,.
152.5.3 She c!u"d n!t sa$ it was )ta"%ing "i%e ighting+.
152.5.8 She c!u"d n!t sa$ that she had )!rmed the
im#ressi!n that the w!man was arguing+.
152.5.1 She c!u"d n!t sa$ that it was a w!man )c!nstant"$
ta"%ing+.
152.5.5 She c!u"d n!t sa$ the '!ice was c!ntinuing u# t! the
gunsh!ts and then st!##ed.
152.5.. She c!u"d n!t sa$ the '!ice came r!m the Accused7s
h!use.
153. Dan der >erwe7s e'idence raises0 at best !r the State0 a s#ecu"ati'e
inerence ! a #!ssibi"it$ ! an argument.
153. The State7s re"iance !n the argument is urther di"uted and reuted b$
>rs Sti##7s e'idence. Acc!rding t! >rs Sti##7s e'idence she was awa%e
at ab!ut !:(" (her c"!c%0 which was a##r!9imate"$ 3 minutes ear"$0
Page 81
sh!wed !3:! =&ec!rd 11-20 "ines .C1- and 11-30 "ines 1C5,. She was in
the #r!cess ! getting u#0 when she heard 3 s!unds0 which s!unded "i%e
gunsh!ts (&ec!rd 11-20 "ines 12C13,.
158. :e!re the gunsh!ts0 >rs Sti##0 wh! was awa%e0 did n!t hear a ema"e
'!ice ta"%ing !r arguing.
151. The ine'itab"e inerence and at the minimum a reas!nab"e inerence is
that the '!ice that >rs 'an der >erwe heard was n!t emanating r!m the
h!use ! the Accused.
155. The State7s re"iance !n an argument is urther reuted b$ the e'idence !
Peter :aba0 the securit$ guard.
15.. Acc!rding t! his e'idence0 which is su##!rted b$ the in!rmati!n !n the
guard trac% (E9hibit )TTT+,0 he was #!siti!ned at the !""!wing stands in
re"ati!n t! the Accused7s h!use:
15..1 At !:1. at stand 2.50 which is the #r!#ert$ ! >r Nh"engethwa0
which is right ne9t t! the h!use ! the Accused.
15..2 @e #assed the h!use ! the Accused t! g! t! stands 112 and
183. @e was at stand 112 at !:! and at stand 183 at !:.
152. <hen he was in the immediate 'icinit$ ! the Accused7s h!use !r ha'ing
#assed his h!use he did n!t hear an$ arguing. Acc!rding t! him
e'er$thing was n!rma" (&ec!rd 3320 "ine 22C230 3330 "ine 15C12,.
1.-. I the "ights were !n at the h!use ! the Accused !r i the$ were arguing
Page 85
t! the e9tent that >rs 'an der >erwe c!u"d hear a ema"e '!ice0 Peter
:aba w!u"d ha'e t!"d the C!urt ab!ut it and n!t that everything was
normal. (&ec!rd 3320 "ines 12C2-,
1.1. C"ear"$0 the s#ecu"ati'e nature c!ncerning the e'idence ! a ema"e
'!ice ar awa$0 which the State see%s t! re"$ u#!n !r the e9istence ! an
argument0 d!es n!t meet the criteria s! as t! c!nstitute acce#tab"e
circumstantia" e'idence. It a"s! d!es n!t meet an$ !bAecti'e standard in
!rder t! Bua"i$ t! !rm #art ! an e'ent !r #ur#!ses ! the time "ines.
1.2. <e reer the @!n!urab"e C!urt t! the summarised time "ine0 whereater
we wi"" m!ti'ate the time "ine as summarised.
SUMMARI$ED, THE TIME CHRONOLOGY OF EVENTS EARLY MORNING
OF 14 FEBRUARY !13 IS AS FOLLO%S:
1.3. !:!: Securit$ acti'ated guard trac% ne9t t! the h!use ! the Accused
1.3. A##r!9imate"$ an$ time between !3:1= !3:14: /irst s!unds
1.8. A##r!9imate"$ !3:14/(: Accused sh!uting !r he"#
1.1. A##r!9imate"$ an$ time between !3:1 !3:1): Screaming
1.5. !3:1(: Accused seen wa"%ing in the bathr!!m
1... !3:1(:(1 (durati!n 11 sec!nds,: *r Sti##7s te"e#h!ne ca"" t! Securit$
1.2. !3:1- (durati!n 8. sec!nds,: >r E!hns!n7s ca"" t! Strubens%!# Securit$
Page 8.
12-. !3:1-:13: >r >ichae" Nh"engethwa7s irst ca"" t! securit$C did n!t g!
thr!ugh
121. !3:1-:3- (durati!n 33 sec!nds,: >r >ichae" Nh"engethwa7s sec!nd ca""
t! securit$
122. !3:1): *r Sti##7s attem#ted ca"" t! 1-111
123. !3:1): Sec!nd s!unds
123. !3:1":!3 (durati!n 23 sec!nds,: Accused7s ca"" t! E!han Stander
(E9hibit KK.,
128. !3:!:!( (durati!n 11 sec!nds,: Accused7s ca"" t! 211 (E9hibit KK.,
121. !3:1:33 (durati!n 2 sec!nds,: Accused7s ca"" t! Securit$ (E9hibit KK.
and E9hibit &,
125. !3::!( (durati!n 12 sec!nds,: Securit$ (Peter :aba, ca"" t! the
Accused
12.. !3: Securit$ (Peter :aba, arri'ed at the h!use ! the Accused
122. A##r!9imate"$ !3:: E!han Stander and Carice Di"A!en arri'ed at the
h!use ! the Accused
2--. A##r!9imate"$ !3:3/4: *r Sti## arri'ed at the h!use ! the Accused
2-1. !3:):!-: E!han Stander7s ca"" t! 211 in the #resence ! *r Sti##
Page 82
2-2. !3:):14 (durati!n ni",: *r Sti##7s attem#ted ca"" t! securit$ (E9hibit J2,
2-3. !3:41:(.: Ambu"ance arri'ed at securit$ gate ! Si"'erw!!ds Estate
(Ph!t! HHH,
2-3. A##r!9imate"$ !3:(!: *ec"arati!n ! death b$ Paramedics (&ec!rd 21.5C
Carice Di"A!en, and Accused g!ing u#stairs t! c!""ect identit$ d!cument
! the *eceased
2-8. A##r!9imate"$ !3:((: The P!"ice arri'ed at the h!use ! the Accused
THE FIRST SOUNDS# ANYTIME BET%EEN APPROXIMATELY 3:13 AND 3:14
2-1. MRS VAN DER MER%E
2-1.1 She w!%e u# at ar!und !1:(- (&ec!rd 1820 "ine 1,.
2-1.2 At a##r!9imate"$ !3:!! she heard !ur gunsh!ts (&ec!rd 1820
"ines 12C2-,0 which was c!nirmed b$ her husband t! ha'e been
gunsh!ts (&ec!rd 1110 "ines 2C1-,. The sh!ts !ccurred !ne
sh!rt"$ ater the !ther (&ec!rd 1110 "ines 1C3,.
2-1.3 Ater the !ur sh!ts0 she heard s!meb!d$ cr$ing !ut "!ud. It
a##eared t! her t! be a w!man7s '!ice but her husband t!"d her
it was the Accused (&ec!rd 1110 "ines 23C28 and 1120 "ine 1,.
2-1.3 <hat is c"ear r!m >rs 'an der >erwe7s e'idence is that the
cr$ing !ut "!ud0 which s!unded "i%e a w!man0 was ater the irst
sh!ts.
Page 1-
2-1.8 <e wi"" dem!nstrate hereunder that the cr$ing !ut "!ud (!r
screaming, !ccurred between a##r!9imate"$ !3:1 and !3:1).
2-1.1 It is thus c"ear that the !ur sh!ts heard b$ >rs 'an der >erwe
!ccurred #ri!r t! !3:1 which is c!nsistent with her statement !
round about 06(00.
2-1.5 *r and >rs Sti## testiied that the screaming was heard between
the irst and sec!nd s!unds.
2-1.. >r and >rs Nh"engethwa testiied that the cr$ing !ut "!ud was
sh!rt"$ ater the irst s!unds (the )bang+, as >r Nh"engethwa
ca""ed securit$ at !3:1-:3- t! re#!rt the cr$ing !ut "!ud which
was be!re the sec!nd s!unds at !3:1).
2-1.2 >r E!hns!n and >rs :urger testiied that the screaming was
between a##r!9imate"$ !3:1 and !3:1).
2-1.1- The screaming st!##ed at !3:1) (See *r Sti## (u# t! !3:1()0
>rs Sti##0 >s :urger0 >rs E!hns!n,.
2-1.11 It cann!t be argued that >rs 'an der >erwe heard the cr$ing !ut
"!ud ater the sec!nd s!unds0 which were at !3:1)0 as it wi"" be
dem!nstrated be"!w that the Accused screamed0 sh!uted !r
cried !ut "!ud u# t! !3:1) (the sec!nd s!unds,0 as it was then0
acc!rding t! >rs Sti##0 >r E!hns!n and >rs :urger (and the
Accused, that the screaming st!##ed.
Page 11
2-1.12 It acc!rds with >r Nh"engethwa and >rs Nh"engethwa7s
e'idence that he made a ca"" at !3:1- t! re#!rt the cr$ing !ut
"!ud.
2-1.13 >!re!'er0 r!m !3:1" t! !3: the Accused was engaged in
te"e#h!ne ca""s t! E!han Stander0 211 and securit$?
2-1.13 At a##r!9imate"$ !3: the Accused carried the *eceased
d!wnstairs. @e was !bser'ed d!ing this b$ E!han Stander0
Carice Di"A!en and Peter :aba wh! arri'ed at his h!use at ab!ut
!3:?
2-1.18 Thereater0 the Accused was in the #resence ! Carice Di"A!en0
E!han Stander0 the #aramedics and P!"ice?
2-1.11 On the State7s 'ersi!n0 in its &e#"$ t! the &eBuest !r /urther
Particu"ars0 >rs Dan *er >erwe heard an )argument+ which
st!##ed simu"tane!us"$ with the !ur sh!ts. This means0 !n the
State7s case0 that the *eceased was sh!t because ! the
argument.
2-1.15 Acc!rding"$0 !n the State7s 'ersi!n the sh!ts heard b$ >rs 'an
der >erwe c!u"d !n"$ be a reerence t! the irst s!unds as
acc!rding t! the State0 the sec!nd s!unds were #receded b$
screams and n!t arguing.
2-1.1. The !ur sh!ts heard b$ >rs 'an der >erwe acc!rd with the !ur
sh!ts ired b$ the Accused.
Page 12
2-1.12 There can be n! d!ubt that the !ur sh!ts heard b$ >rs Dan *er
>erwe c!nstituted the irst s!unds. On her e'idence it was
r!und ab!ut !3:!!0 which c!u"d be an$ time ater !3:!! but
be!re the cr$ing !ut "!ud4screaming0 which we wi"" dem!nstrate
!ccurred between a##r!9imate"$ !3:1 and !3:1).
2-1.2- MRS A STIPP
2-1.21 Acc!rding t! >rs Sti##0 the time indicated !n her c"!c% radi! was
!3:! when she w!%e u#. She was in the #r!cess ! getting u#
when she heard 3 s!unds0 which s!unded "i%e gunsh!ts (&ec!rd
11-20 "ines .C1-,. Acc!rding t! her0 her c"!c% radi! c!u"d be 3
minutes ear"$ (&ec!rd 11-30 "ines 1C5,.
2-1.22 This acc!rds with the e'idence ! >rs Dan *er >erwe0 but !r
the act that >rs Dan *er >erwe heard !ur sh!ts0 and but !r
the act that it is uncertain h!w "!ng ater !3:!! the sh!ts were
ired.
2-1.23 On her e'idence0 the irst s!unds were at ab!ut !3:!9 This
must be ana"$sed with reerence t! the sec!nd s!unds which
were at !3:1)9
2-1.23 Acc!rding t! >rs Sti##7s e'idence0 ater the sh!ts:
2-1.23.1 she s#!%e t! her husband which was ! sh!rt
durati!n?
Page 13
2-1.23.2 she "!!%ed thr!ugh the wind!w?
2-1.23.3 she went t! the (sma""er, ba"c!n$. She remained
there !r a sh!rt time (&ec!rd0 11-30 "ines 11C13 and
112.0 "ines 5C12,?
2-1.23.3 she m!'ed t! the bigger ba"c!n$ !r a better 'iew.
She was n!t h!nest ab!ut g!ing t! the bigger
ba"c!n$. *r Sti## testiied that0 she was looking
through her window and " heard the screaming ... "
remember talking to her because ", you could actually
hear from the balcony where " was standing. .o she
was not with me initially when " heard the screams.
.he was still in the house. +hen " went inside again,
" met her at the door. .he was coming to meet me, "
was coming in. .o she was not standing beside me
at the railing looking out (&ec!rd 3830 "ines 13C21,
2-1.23.8 *r Sti## then wa"%ed bac% int! the bedr!!m be!re
!3:1( as he made a ca"" t! securit$ (at !3:1(:(1, and
then attem#ted t! ca"" 1-111 (at !3:1),. Acc!rding t!
*r Sti## he met >rs Sti## at the d!!r as she was
c!ming r!m inside the h!use when he m!'ed t! the
main bedr!!m t! ma%e the ca"".
2-1.28 *r Sti## m!'ed int! the main bedr!!m Aust be!re !3:1(.
2-1.21 On an ana"$sis ! >rs Sti##7s m!'ements r!m hearing the irst
Page 13
sh!ts0 it is c"ear that her m!'ements c!ntinued !r a re"ati'e"$
sh!rt time.
2-1.25 @er e'idence that she heard the irst sh!ts sh!rt"$ ater !3:!
c!u"d there!re n!t be c!rrect as her m!'ements between
getting u# and !3:1( c!u"d deinite"$ n!t be 13 minutes.
2-1.2. This means that the irst s!unds must ha'e !ccurred re"ati'e"$
sh!rt"$ be!re !3:1(0 which c!u"d be an$thing between !3:1
and !3:13.
2-1.22 The time ! ab!ut !3:13/14 is c!nsistent with >r and >rs
Nh"engethwa7s e'idence. >r Nh"engethwa made the ca""s at
!3:1-. I regard is had t! >r Nh"engethwa7s m!'ements r!m
the time he w!%e u# unti" he made the ca""s at !3:1-0 it is
c!nsistent with the estimati!n ! the irst s!unds t! be ar!und
!3:1/14.
2-1.3- DR STIPP
2-1.31 *r Sti## was w!%en u# b$ three "!ud bangs0 as a c!nseBuence
! which he went t! the bigger ba"c!n$. (&ec!rd 3-20 "ines 12C
22,
2-1.32 @e heard a w!man screaming and a"s! a man screaming
(&ec!rd 3220 "ines 3C11,. This was be!re !3:1( as he returned
t! the main bedr!!m and #h!ned Si"'erw!!ds Securit$ at
!3:1(:(1 as rec!rded in the Securit$7s Te"%!m #h!ne "!g
Page 18
(durati!n 11 sec!nds,. (E9hibit JJ and &ec!rd 3130 "ines 5C.,
2-1.33 It is c"ear that he heard the irst s!unds be!re he made the ca""
at !3:1(:(10 which is c!nsistent with the e'idence ! >rs Sti##
and >rs Nh"engethwa (wh! w!%e >r Nh"engethwa u#,.
2-1.33 An ana"$sis ! the m!'ements ! *r Sti## between the irst
s!unds and the sec!nd s!unds sh!ws that !n his 'ersi!n the
irst s!unds must ha'e !ccurred 'er$ sh!rt"$ be!re the sec!nd
s!unds. @!we'er0 we wi"" dem!nstrate hereunder that *r Sti##7s
time estimati!ns were inc!rrect and in s!me instances untrue.
2-1.38 MR NHLENGETH%A
2-1.31 <hen acing the Accused7s h!use0 he is the immediate
neighb!ur t! the "et ! the Accused7s h!use.
2-1.35 >r Nh"engethwa7s wie w!%e him u# and t!"d him she had heard
a bang.
2-1.3. @e went t! his daughter7s r!!m t! ma%e sure she was sae. @e
chec%ed the h!use Buic%"$ (&ec!rd 22-20 "ines 2C8, then went
bac% t! the main bedr!!m0 where he #eered thr!ugh the b"inds.
2-1.32 Thereater0 he heard a man cr$ing 'er$ "!ud"$ in a high #itched
'!ice.
2-1.3- @e #h!ned securit$ at !3:1-:13 t! re#!rt the "!ud cr$ing.
(E9hibit JJ,. The ca"" did n!t g! thr!ugh.
Page 11
2-1.31 @e again #h!ned securit$ at !3:1-:3-. (E9hibit JJ, and s#!%e
!r 33 sec!nds in re#!rting the "!ud cr$ing.
2-1.32 I regard is had t! his m!'ements r!m the time he w!%e u# t!
ma%ing the ca"" t! securit$ at !3:1-0 the estimati!n is that the
irst s!unds must ha'e been an$time between a##r!9imate"$
!3:1 t! !3:14.
2-1.33 This estimated time is c!nsistent with the estimated times ! the
irst s!unds ab!'e.
2-1.33 MRS NHLENGETH%A
2-1.38 She is the wie ! >r Nh"engethwa.
2-1.31 She w!%e u# because ! a Gbang7 n!ise. She w!%e her husband
u#. @er husband "et the main bedr!!m t! chec% i their daughter
was sae and whether it was sae in the h!use.
2-1.35 She heard a ma"e sh!uting help, help, help, when her husband
was !utside the main bedr!!m.
2-1.3. N!t "!ng ater that she heard a ma"e cr$ing 'er$ "!ud"$ in a high
#itched '!ice. She imitated the cr$ing !ut "!ud in C!urt0 which
rec!rding wi"" be #"a$ed in C!urt during argument. It resemb"es
a high #itched scream.
2-1.32 @er husband ca""ed securit$ (at !3:1-, t! re#!rt the "!ud cr$ing.
Page 15
2-1.8- @er e'idence c!nirms the estimati!n ! the time ! the irst
s!unds t! be an$thing between a##r!9imate"$ !3:1 and !3:14.
2-1.81 MR ,OHNSON
2-1.82 >r E!hns!n heard a w!man screaming.
2-1.83 @e ran t! the #ati!.
2-1.83 On the #ati! he heard the w!man screaming and a man
sh!uting !r he"#.
2-1.88 @e st!!d !n the ba"c!n$ !r a sh!rt time (&ec!rd 2120 "ines 11C
12,.
2-1.81 @e went inside t! ma%e a ca"" at !3:1-.
2-1.85 @is m!'ements be!re !3:1- c!u"d n!t ha'e ta%en "!nger than 2
t! 3 minutes.
2-1.8. On 1 >arch 2-13 >r E!hns!n c!m#i"ed n!tes ! the e'ents
(&ec!rd 2130 "ine 5,. @e edited !r amended the n!tes three
times t! ensure their accurac$ (&ec!rd 2130 "ine 8 and 25.0 "ines
1-C11,. The n!tes were mar%ed e9hibit7s O1CO3.
2-1.82 In a"" three editi!ns ! the n!tes he estimated that it was around
03:12 when he w!%e u# and heard a w!man screaming.
(E9hibit7s O1CO3, (emphasis supplied,. @is m!'ements
ana"$sed ab!'e sh!w that !n the #r!babi"ities it w!u"d ha'e
Page 1.
been ater !3:1.
2-1.1- In the ina" #aragra#h ! his n!tes0 he stated that his wie7s
version was the same as " explained above.
2-1.11 Acc!rding t! the e'idence ! *r Sti##0 >rs Dan der >erwe0 >r
Nh"engethwa0 >rs Nh"engethwa and the Accused0 the
screaming4cr$ing !ut "!ud started re"ati'e"$ s!!n ater the irst
s!unds.
2-1.12 I regard is had t! his m!'ements #ri!r t! his te"e#h!ne ca"" t!
securit$ at !3:1-0 and the e'idence ! the !ther witnesses
reerred t! ab!'e0 as t! when the screaming4sh!uting4cr$ing !ut
"!ud"$ started in re"ati!n t! the irst s!unds0 the irst s!unds
w!u"d ha'e !ccurred between ar!und !3:1 t! !3:14.
2-1.13 MRS BURGER
2-1.13 >rs :urger testiied that she w!%e u# Aust ater !3:!! r!m a
w!man7s screams (&ec!rd 2.0 "ines 2C11,. @er husband
c!ntradicted her e'idence b$ stating that she w!%e u#0 n!t
because ! the screams0 but because ! him getting !ut ! bed.
(&ec!rd 1.-0 "ines 23C28,.
2-1.18 @er time ! Aust ater !3:!! cann!t be c!rrect i c!m#ared t! the
e'idence ! >r E!hns!n0 *r Sti##0 his n!tes (which >rs :urger
agreed with,0 >r and >rs Nh"engethwa. @!we'er0 Aust ater
!3:!! ma$ be a wide time rame.
Page 12
2-1.11 She heard a w!man screaming and a man sh!uting help three
times. She ca""ed her husband0 (wh! was !n the ba"c!n$, t!
return t! the bedr!!m. @er husband then te"e#h!nica""$ s#!%e t!
(Strubens%!#, Securit$ at !3:1- !r 8. sec!nds. (&ec!rd 2.0
"ines 1C280 220 "ines 1C280 3-0 "ines 1C13 and 13-0 "ines 3C8,
2-1.15 It is c"ear that it was ! sh!rt durati!n r!m when she w!%e u#
unti" her husband ca""ed securit$.
2-1.1. It is c"ear r!m the e'idence ! *r Sti##0 >rs Sti## and >r and
>rs Nh"engethwa that the screaming !ccurred re"ati'e"$ s!!n
ater the irst s!unds.
2-1.12 On the e'idence ! >rs :urger0 in the c!nte9t ! the e'idence !
>r E!hns!n and his n!tes and the e'idence ! *r and >rs Sti##
and >rs Nh"engethwa0 ha'ing regard t! her e'idence r!m the
time she w!%e u# t! the sec!nd s!unds0 the irst s!unds w!u"d
ha'e !ccurred an$thing between !3:1 2/ !3:14.
2-1.5- CARICE VIL,OEN (STANDER)
2-1.51 >rs Di"A!en w!%e u# and heard d!gs bar%ing.
2-1.52 She then heard a man sh!uting0 help, help, help.
2-1.53 Acc!rding t! her0 the sh!uting was a##r!9imate"$ i'e minutes
be!re her ather0 E!han Stander0 had recei'ed a ca"" r!m the
Accused0 which was at !3:1". This causes the time estimati!n
Page 5-
t! be a##r!9imate"$ !3:14 when help, help, help was sh!uted.
2-1.53 In the c!nte9t ! the e'idence ! >rs Nh"engethwa0 >r E!hns!n0
>rs :urger0 the Accused sh!uted help, help, help re"ati'e"$
s!!n ater the irst s!unds.
2-1.58 Acc!rding"$0 her e'idence su##!rts the time estimati!n that the
irst s!unds must ha'e !ccurred between a##r!9imate"$ !3:1
!3:149
2-1.51 MRS MOTSH%ANE
2-1.55 <hen acing the Accused7s h!use0 she is the immediate
neighb!ur ! the Accused0 "i'ing in the h!use t! the right ! the
Accused7s h!use.
2-1.5. She w!%e u#0 hearing a man cr$ing !ut 'er$ "!ud"$. The cr$ing
was c!ntinu!us (&ec!rd 228-0" "ines 12C28= 22810 "ines 1C1,.
She imitated the cr$ing !ut "!ud which resemb"ed a high #itched
scream. The rec!rding wi"" be #"a$ed in C!urt during argument.
2-1.52 In her statement she said that she had heard a man cr$ing !ut
"!ud"$ at ab!ut !3:!.
2-1..- She testiied that the !3:! was an estimate as she did n!t "!!%
at the time when she w!%e u# (&ec!rd 22830 "ines 23C28,.
2-1..1 Acc!rding t! a"" !ur State witnesses there was n! "!ud s!unds
r!m an$!ne ater !3:1) (i.e. the sec!nd s!unds,. In an$ e'ent0
Page 51
the Accused was !n the te"e#h!ne with E!han Stander at !3:1"
!r 23 sec!nds (E9hibit KK.,0 and thereater at !3:! !n the
te"e#h!ne with 211 !r 11 sec!nds (E9hibit KK.,. Then he ca""ed
Securit$ at !3:1 and Securit$ returned his ca"" at !3:. At
a##r!9imate"$ !3: he carried the *eceased d!wnstairs and
was !bser'ed b$ Carice Di"A!en0 E!han Stander and Peter :aba
wh! c!nirmed the time ha'ing been !3:.
2-1..2 The cr$ing !ut "!ud c!u"d there!re n!t ha'e been at
a##r!9imate"$ !3:!.
2-1..3 She testiied that ater s!me time she heard a car passing by.
She "!!%ed thr!ugh the wind!w acing the h!use ! the Accused.
She saw the >ini C!!#er. She t!"d her husband0 " $ust seen the
Gini &ooper that has $ust stopped there. (&ec!rd 22820 "ines
12C18,
2-1..3 She said that r!m the time she had heard the cr$ing !ut "!ud !r
the irst time t! the time ! the >ini C!!#er st!##ing was more
than five minutes. 9lus minus ten minutes, not more than ten
minutesL (&ec!rd 22830 "ines 11C23,
2-1..8 The >ini C!!#er ! Carice Di"A!en arri'ed at the Accused7s
h!use at ab!ut !3: (acc!rding t! the e'idence ! E!han
Stander and Carice Di"A!en the$ arri'ed in the >ini C!!#er !
Carice Di"A!en within a##r!9imate"$ 3 minutes r!m the time
when the ca"" r!m the Accused was recei'ed b$ E!han Stander
Page 52
at !3:1",. Peter :aba c!nirmed this as he met them at the
h!use ! the Accused. @e ca""ed the Accused at !3: when he
arri'ed at the h!use ! the Accused. The time ! his ca"" at
!3: was c!nirmed in E9hibit KK.. E!han Stander0 Carice
Di"A!en and Peter :aba saw the Accused carr$ing the *eceased
d!wn the stairs which c!nirms that the three ! them arri'ed
m!re !r "ess at the same time at the Accused7s h!use.
2-1..1 >rs >!tshwane7s estimati!n ! a##r!9imate"$ 1- minutes
between the time ! her wa%ing u# and the >ini C!!#er arri'ing
at the scene0 sh!ws the cr$ing !ut !ccurred a##r!9imate"$ ten
minutes be!re !3:.
2-1..5 The timing ! m!re than 8 minutes and n!t m!re than 1-
minutes be!re !3: ta%es the time when she w!%e u#0 t! a
time between !3:1 and !3:1)9
2-1... This is c!nsistent with the estimati!n ! the time ! the irst
s!unds t! ha'e !ccurred between a##r!9imate"$ !3:1#!3:14.
THE TIME OF SHOUTING, &HELP, HELP, HELP'# APPROXIMATELY !3:14/1(
2-5. MR ,OHNSON
2-5.1 <hen he was !n the ba"c!n$ he (a"s!, heard a ma"e #ers!n
sh!uting0 help, help help. (&ec!rd 1.-0 "ines 12C23,.
2-5.2 The sh!uting help help help !n his 'ersi!n was ater
Page 53
a##r!9imate"$ 3:1 but be!re 391-9 I regard is had t! his
m!'ements0 the sh!uting !ccurred between a##r!9imate"$
!3:1 ?15 !3:1( as his e'idence was that ater hearing the
help, help, help his wie ca""ed him bac% int! the bedr!!m t!
ca"" Securit$ (&ec!rd 1.-0 "ines 23C28 and 1.10 "ine 1,. @e ca""ed
securit$ at !3:1-. This acc!rds with his n!tes (E9hibits O1CO3,
2-5.3 MRS BURGER
2-5.3 @er hearing the sh!uting help help help a""s in the same time
brac%et as testiied t! b$ >r E!hns!n0 name"$ a##r!9imate"$
!3:1 t! !3:1(. (&ec!rd 2.0 "ines 21C23,
2-5.8 DR STIPP
2-5.1 @e heard a man screaming #ri!r t! !3:1(:(19
2-5.5 @e heard a man sh!uting0 help, help, help ater he had
a""eged"$ s#!%en t! Securit$ at !3:) (&ec!rd 3130 "ines 3C8,.
2-5.. *r Sti##7s e'idence is actua""$ inc!rrect and in c!n"ict with the
e'idence ! >r E!hns!n0 >rs :urger0 >rs Nh"engethwa and
Carice Di"A!en.
2-5.2 It wi"" be dem!nstrated be"!w that his e'idence is n!t !n"$
c!ntrar$ t! the e'idence ! the witnesses reerred t! ab!'e0 but
a"s! that at the time suggested b$ *r Sti## (ater !3:))0 he (*r
Sti##, was a"read$ at the h!use ! the Accused. The unre"iabi"it$
Page 53
! *r Sti##7s e'idence in re"ati!n t!0 inter alia, the time
chr!n!"!g$ is dea"t with in detai" be"!w.
2-5.1- @!we'er0 i regard is had t! the act that *r Sti##7s e'idence was
that he had heard help, help, help Aust ater he had s#!%en t!
securit$ !n the te"e#h!ne (&ec!rd0 3130 "ines 1C2,0 it c!u"d !n"$
mean that *r Sti## heard the help, help, help Aust ater
!3:1(:(1.
2-5.11 The !bAecti'e e'idence is that the !n"$ ca"" ! *r Sti## which
went thr!ugh t! securit$ was at !3:1(:(1 (Ca"" &egister E9hibit
J,. The te"e#h!ne c!n'ersati!n at !3:1( was c!nirmed b$
Peter :aba wh! went t! *r Sti##7s h!use as a resu"t ! *r
Sti##7s #h!ne ca"". (&ec!rd 3250 "ines 1C1, Thereater Peter
:aba went t! the Accused7s h!use. @e arri'ed at the Accused7s
h!use at !3:.
2-5.12 I *r Sti## heard help, help, help at ab!ut !3:1( it w!u"d be
c!nsistent with the e'idence ! >rs :urger0 >r E!hns!n0 Carice
Di"A!en and >rs Nh"engethwa as t! when the$ had heard the
man screaming !r he"#.
2-5.13 MRS NHLENGETH%A
2-5.13 Sh!rt"$ ater she had w!%en u# because ! a Gbang7 n!ise0 her
husband "et the main bedr!!m t! chec% !n the saet$ ! their
daughter and the interi!r ! the h!use.
Page 58
2-5.18 Sh!rt"$ thereater she heard a ma"e sh!uting he"# three times.
2-5.11 Sh!rt"$ thereater her husband made a ca"" t! Securit$ at !3:1-.
2-5.15 I regard is had t! the m!'ements ! >r Nh"engethwa as reerred
t! in his e'idence0 the sh!uting !r he"# three times must ha'e
ta%en #"ace at a##r!9imate"$ !3:14/!3:1(9
2-5.1. MRS C VIL,OEN
She heard s!me!ne sh!uting he"# three times. She estimated the
sh!uting t! ha'e !ccurred a##r!9imate"$ 8 minutes be!re !3:1"0 which
su##!rts the estimated time ! sh!uting t! be a##r!9imate"$
!3:14/!3:1(.
THE SCREAMING# APPROXIMATELY ANY TIME BET%EEN !3:1 !3:1)
2-.. <e dea" in detai" with the screaming be"!w0 screaming being shouting,
screaming, crying out loud. /!r #resent #ur#!ses we dea" with the
screaming in re"ati!n t! the chr!n!"!g$ !r time "ines.
2-2. MRS VAN DER MER%E
2-2.1 Ater the sh!ts at ar!und !3:!!, she heard that s!meb!d$ was
cr$ing !ut "!ud"$. It a##eared t! her t! be a w!man7s '!ice but
her husband t!"d her that it was the Accused (&ec!rd 1110 "ines
23C280 1120 "ine 1,.
2-2.2 Acc!rding t! her 'ersi!n the !ur sh!ts !ccurred sh!rt"$ ater
Page 51
!3:!! and the cr$ing !ut "!ud"$ !""!wed thereater.
2-2.3 It was dem!nstrated ab!'e that the cr$ing !ut "!ud"$ she had
heard was at the same time that !ther witnesses had heard the
screaming !r cr$ing !ut "!ud.
2-2.3 DR STIPP
2-2.8 *r Sti## was w!%en u# b$ three "!ud bangs0 as a c!nseBuence
! which he went t! the bigger ba"c!n$ (&ec!rd 3-20 "ines 1222,.
2-2.1 @e heard a ema"e screaming three !r !ur times and a"s! heard
a man screaming (&ec!rd 3-20 "ines 23C28 and 3220 "ines 3C11,.
2-2.5 @e went int! the bedr!!m be!re he made the ca"" t! Securit$ at
!3:1(:(1. @e then tried t! ca"" 1-111 at !3:1) at which time he
heard the sec!nd s!unds.
2-2.. I regard is had t! his m!'ements the screaming was
a##r!9imate"$ 1C2 minutes be!re !3:1(:(1.
2-2.2 On his e'idence the screaming was r!m ab!ut !3:14 and he
heard n! screaming ater !3:1(.
2-2.1- MRS STIPP
2-2.11 Acc!rding t! >rs Sti##0 the time !n her c"!c% radi! was !3:!
when she w!%e u#. She was in the #r!cess ! getting u# when
she heard three s!unds0 which s!unded "i%e gunsh!ts (&ec!rd
Page 55
11-20 "ines .13,. @er c"!c% radi! c!u"d be three minutes ear"$
(&ec!rd 11-30 "ines 1C5,.
2-2.12 Ater the sh!ts she heard a w!man screaming and a"s! a man
screaming (&ec!rd 11-80 "ines 1C5,.
2-2.13 This was be!re !3:1( and it c!ntinued unti" !3:1) (&ec!rd
11-8,.
2-2.13 I regard is had t! her m!'ements the screaming was ab!ut 1 =
2 minutes be!re !3:1(:(1, which is c!nsistent with the
estimated time ! !3:1 !3:1).
2-2.18 MR NHLENGETH%A
2-2.11 >r Nh"engethwa7s wie w!%e him u# and t!"d him she had heard
a bang.
2-2.15 @e went t! his daughter7s r!!m t! ma%e sure that she was sae.
@e chec%ed the h!use Buic%"$ (&ec!rd 22-20 "ines 2C3, then
went bac% t! the main bedr!!m0 where he #eered thr!ugh the
b"inds.
2-2.1. Thereater0 he heard a man cr$ing 'er$ "!ud"$ in a high #itched
'!ice (&ec!rd 221-0 "ines 8C5,. This was heard be!re he made
the ca""s t! Securit$ at !3:1- and whi"st he was !n the #h!ne
(&ec!rd 22110 "ines 23C280 22120 "ines 2-C23,.
2-2.12 I regard is had t! his m!'ements0 the screaming started a ew
Page 5.
minutes be!re !3:1-0 which is c!nsistent with ab!ut !3:1
!3:1).
2-2.2- MRS NHLENGETH%A
2-2.21 She w!%e u# because ! a Gbang7 n!ise. She w!%e her husband
u#. @er husband "et the main bedr!!m t! chec% i their daughter
was sae and i it was sae in the h!use.
2-2.22 She heard a ma"e sh!uting help, help, help, sh!rt"$ ater her
husband had "et the main bedr!!m.
2-2.23 N!t "!ng thereater she heard a ma"e cr$ing 'er$ "!ud"$ in a high
#itched '!ice.
2-2.23 She heard the cr$ing !ut "!ud be!re her husband ca""ed securit$
(at !3:1-, t! re#!rt the "!ud cr$ing.
2-2.28 I regard is had t! her e'idence0 the screaming started a ew
minutes be!re !3:1-0 which is c!nsistent with the estimated
time ! !3:1 !3:1).
2-2.21 MR ,OHNSON
2-2.25 In a"" three editi!ns ! the n!tes0 he estimated that it was
around 03:12 when he w!%e u# and heard a w!man screaming.
(E9hibit7s O1CO3,.
2-2.2. Sh!rt"$ ater hearing a w!man screaming and a man sh!uting
Page 52
help three times he made a ca"" t! securit$ at !3:1- which
"asted 8. sec!nds (&ec!rd 1.-0 "ines 12C280 1.10 "ines 1C28 and
2110 "ines 5C1-,.
2-2.22 I regard is had t! his e'idence and his m!'ements0 the
screaming was at ab!ut !3:1 !3:1).
2-2.3- MRS BURGER
2-2.31 >rs :urger testiied that she w!%e u# Aust ater !3:!! r!m a
w!man7s screams (&ec!rd 2.0 "ines 2C11,.
2-2.32 She heard a w!man screaming and a man sh!uting help three
times. She ca""ed her husband0 wh! was !n the ba"c!n$0 t!
return t! the bedr!!m. @er husband then te"e#h!nica""$0 s#!%e
t! (Strubens%!#, Securit$ at !3:1- !r the durati!n ! 8.
sec!nds. (&ec!rd 2.0 "ines 1C280 220 "ines 21C280 3-0 "ines 1C13
and 13-0 "ines 3C8,
2-2.33 The screaming st!##ed at !3:1) !r aded immediate"$
thereater.
2-2.33 I regard is had t! her m!'ements in re"ati!n t! her wa%ing u#
and the te"e#h!ne ca"" at !3:1-0 the estimated time ! ab!ut
!3:1 t! !3:1) !r the screaming t! ha'e !ccurred.
2-2.38 MRS MOTSH%ANE
2-2.31 She w!%e u# hearing a man cr$ing "!ud"$ in a high #itched
Page .-
'!ice. She described it as a cr$ ! #ain as i !ne ! the securit$
guards had been sh!t. (&ec!rd0 228-0 "ines 12C1.
2-2.35 Ater s!me time she heard a car passing by. She "!!%ed
thr!ugh the wind!w acing the h!use ! the Accused. She saw
the >ini C!!#er. She t!"d her husband0 " $ust seen the Gini
&ooper that has $ust stopped there. (&ec!rd 2282 0 "ines 12C18,
2-2.3. She said r!m the time she had heard the cr$ing !r the irst time
t! the time ! the >ini C!!#er st!##ing was more than five
minutes. 9lus minus ten minutes, not more than ten minutesL
(&ec!rd 22830 "ines 11C23,
2-2.32 The >ini C!!#er ! Carice Di"A!en arri'ed at the Accused7s
h!use at ab!ut !3: as stated ab!'e.
2-2.3- On her e'idence the estimated time ! the screaming t! be
between !3:1 !3:1) seems c!rrect.
THE ACCUSED %AS SEEN %AL*ING IN THE BATHROOM #
APPROXIMATELY !3:1(
21-. Acc!rding t! >rs Sti##7s statement (e9hibit )HH+, she was !n the
ba"c!n$ when she saw a man wa"%ing in the bathr!!m ! the Accused.
Der$ s!!n thereater0 >rs Sti## and *r Sti## went bac% int! the main
bedr!!m !r *r Sti## t! ma%e a te"e#h!ne ca"". She heard three thud
s!unds. At that time *r Sti## was !n the te"e#h!ne tr$ing t! ca"" 1-111. It
is n!t in dis#ute that *r Sti## tried t! ca"" 1-111 at !3:1).
Page .1
211. @!we'er0 in her e'idence she testiied that she did n!t see the man
wa"%ing in the bathr!!m but that she was t!"d b$ *r Sti## that he had
seen him. This was Aust be!re *r Sti## went bac% int! the bedr!!m t!
ma%e the te"e#h!ne ca""s. She said0 thereafter, he 4<r .tipp7 went
inside, as we decided to get help, (&ec!rd 11-30 "ines 23C280 11-30 "ine
1 and 11-80 "ines .C13, and he tried t! ca"" 1-111.
212. >rs Sti##0 in tr$ing t! e9#"ain the c!ntradicti!n between her aida'it and
her e'idence with reerence t! her seeing the man wa"%ing0 testiied "
think the night that we took down the affidavit, that is $ust what " could
recall (&ec!rd0 11130 "ines 11C12,. It d!es n!t ma%e sense that she
c!u"d reca"" (n!t t!! "!ng ater the incident, that she had seen a man
wa"%ing i she did n!t in act see him. 4=mphasis added7.
213. <hen she c!nsu"ted with >r Ne" and Ca#tain 'an Aardt0 she t!"d them0
that " have thought every second through of that night, and " know that "
did not see the man myself. (&ec!rd 11130 "ines 13C18,.
213. This ab!ut turn in 'ersi!n sti"" d!es n!t e9#"ain wh$0 when she de#!sed
t! her aida'it0 she reca""ed ha'ing seen a man wa"%ing.
218. It e9#!ses the unre"iabi"it$ ! her e'idence as she was n!t #!siti!ned !n
the bigger ba"c!n$ and c!u"d n!t ha'e recalled seeing a man walking in
the bathroom (&ec!rd0 *r Sti##0 3830 "ines 13C21 = dea"s with her n!t
being !n the big ba"c!n$,.
211. The e'idence c!nirms that it c!u"d !n"$ ha'e been the Accused wh!
was seen wa"%ing in the bathr!!m r!m right t! "et. *r Sti## described
Page .2
the #ers!n as !ne with a air si"h!uette. The Accused had n! shirt !n
and the *eceased had a b"ac% t!# !n.
215. *r Sti## m!'ed r!m the (bigger, ba"c!n$ int! the main bedr!!m t! ca""
securit$. @e ca""ed securit$ at !3:1(:(1 and he attem#ted t! ca"" 1-111
at !3:1). It was during this attem#ted ca"" t! 1-111 that he had heard
the sec!nd s!unds.
21.. It is c"ear r!m >rs Sti##7s statement and her e'idence that the Accused
was seen b$ *r Sti## in the bathr!!m Aust be!re *r Sti## went bac% int!
the bedr!!m t! ma%e the ca"" t! securit$ at 3:1(:(1 and the attem#ted
ca"" t! 1-111 at 3:1).
212. @!we'er0 acc!rding t! *r Sti##0 he saw the Accused (a #ers!n, in the
bathr!!m at a##r!9imate"$ !3:3! which was (acc!rding t! him, ater he
had made the sec!nd ca"" t! securit$ at !3:).
22-. Acc!rding t! his e'idence securit$ arri'ed a few minutes later at his
h!use (&ec!rd 3130 "ine 5,.
221. @e went !ut !nt! the !ther ba"c!n$ watching them as the$ went. @e then
saw that s!me!ne was wa"%ing in the bathr!!m r!m the right t! the "et
(&ec!rd 3130 "ines 1.C12, (acc!rding t! his e'idence this w!u"d be at a
time ater !3:3!,.
222. <e wi"" dem!nstrate hereunder that the time gi'en b$ *r Sti## as
a##r!9imate"$ !3:3! is inc!rrect0 as at that time *r Sti## was at the
h!use ! the Accused and the Accused was d!wnstairs with the
Page .3
*eceased in the immediate #resence ! Carice Di"A!en.
223. T! urther dem!nstrate that *r Sti##7s e'idence that he saw the man
wa"%ing in the bathr!!m ater ab!ut !3:3! is untrue0 we reer t! the
e'idence ! >rs Sti##. >rs Sti## testiied that when securit$ came t!
their h!use0 she indicated t! the Accused7s h!use and t!"d securit$ that
is where he 4<r .tipp7 saw the man walking 4in the bathroom7 (&ec!rd
11510 "ines 1C5,.
223. This means that when securit$ arri'ed at the Sti##7s h!use >rs Sti##
a"read$ %new ab!ut *r Sti## ha'ing seen the man wa"%ing in the
bathr!!m.
228. This c!ntradicts the e'idence ! *r Sti## that he !n"$ saw the man
wa"%ing in the bathr!!m ater securit$ had "et his h!use.
221. @!we'er0 i regard is had t! the act that *r Sti## in rea"it$ s#!%e t!
securit$ !n the te"e#h!ne at !3:1(:(1 and that Peter :aba as a resu"t
there! came t! *r Sti##7s h!use (be!re !3: as he was at the
Accused7s h!use at !3: ater s#ea%ing t! *r Sti##,0 then it c!nirms
>rs Sti##7s e'idence that *r Sti## saw the man wa"%ing Aust be!re he
s#!%e t! securit$ at !3:1(:(1.
225. <e wi"" a"s! indicate wh$ *r Sti## tai"!red his e'idence t!0 inter alia,
create the time ! a##r!9imate"$ !3:3!, instead ! a##r!9imate"$ !3:1(
when he saw the man wa"%ing in the bathr!!m.
Page .3
!3:1)# THE SECOND SOUNDS
22.. >r E!hns!n made a #h!ne ca"" t! Strubens%!# Securit$ at !3:1- which
"asted !r (. @6>@0 as #er his statement and te"e#h!ne data. (E9hibit N,
222. :!th >rs :urger and >r E!hns!n heard the sec!nd s!unds sh!rt"$ ater
the ab!'eCmenti!ned #h!ne ca"". Acc!rding t! their e'idence0 >r
E!hns!n ran bac% t! the ba"c!n$ ater the #h!ne ca"". @a'ing returned t!
the ba"c!n$0 he heard screaming and then gunshots (&ec!rd 1.20 "ines
8C12, (&ec!rd 3-0 "ine 11,.
23-. The a!reg!ing means that the sec!nd s!unds must ha'e s!unded 'er$
sh!rt"$ ater the !3:1- #h!ne ca""0 which c!incides with *r Sti## hearing
three loud bangs when he was !n the #h!ne tr$ing t! ca"" 1-111 at
!3:1). (E9hibit P,.
231. >rs Sti## c!nirmed the time ! !3:1) as the time when she heard the
three thud s!unds when *r Sti## was !n the te"e#h!ne tr$ing t! ca""
1-111 at !3:1)9(&ec!rd 11-30 "ines 8C.0 11330 "ines 13C150 111.0 "ines 1C
110 11520 "ines 3C.,
!3:1":!3 (TIME OF ACCUSED+S PHONE CALL TO ,OHAN STANDER)
232. At !3:1":!3 the Accused ca""ed E!han Stander and said Com @ohan
please, please, please, come to my house. 9lease. " shot >eeva. "
thought she was an intruder ... (&ec!rd 21330 "ines 1C3,. The ca""
durati!n was 4 @6>@. (E9hibit KK.,
Page .8
!3:!:!( (THE ACCUSED MADE A CALL TO NETCARE "11)
233. At !3:!:!( the Accused ca""ed Netcare 211. The ca"" durati!n was --
@6>@9 (E9hibit KK.,.
!3:1:33 (THE ACCUSED MADE A CALL TO SECURITY)
233. At !3:1:33 the Accused ca""ed securit$0 which ca"" was answered b$
Peter :aba. The ca"" at !3:1:33 is c!rr!b!rated b$ the Accused7s
detai"ed bi""ing rec!rds recei'ed r!m D!dac!m and c!nirmed b$ the
State. It is a"s! sh!wn in the /S> charts attached t! Ca#t >!""er7s
statement. (E9hibit7s & and S and KK.,
!3::!( (TIME OF SECURITY+S RETURN CALL TO THE ACCUSED AND
ARRIVAL OF SECURITY AT THE ACCUSED+S HOUSE)
238. At !3::!( Peter :aba ca""ed the Accused (E9hibit & and S,. At that
time Peter :aba had Aust arri'ed at the h!use ! the Accused (&ec!rd
32.0 "ines 5C1-, r!m *r Sti##7s h!use.
!3:/!3:3 (ESTIMATED TIME OF ,OHAN STANDER AND CARICE
VIL,OEN+S ARRIVAL AT THE SCENE)
231. At !3:1" E!han Stander recei'ed the ca"" r!m the Accused9 As stated
be!re0 E!han Stander and his daughter0 Carice Di"A!en testiied that the$
rushed t! the h!use ! the Accused0 and that it w!u"d n!t ha'e ta%en
them "!nger than a##r!9imate"$ three minutes t! arri'e at the h!use !
the Accused0 ater ha'ing recei'ed the #h!ne ca"". (&ec!rd 215.0 "ines
21C23,
Page .1
235. Acc!rding"$0 E!han Stander and Carice Di"A!en w!u"d ha'e arri'ed at the
Accused7s h!use at a##r!9imate"$ !3:.
23.. Their arri'a" time at a##r!9imate"$ !3: is c!nirmed b$ Peter :aba as
he (:aba, made a ca"" t! the Accused at the time when he arri'ed at the
Accused7s h!use r!m *r Sti##7s h!use. This ca"" was at !3::!(.
232. I#!n their arri'a"0 a"" three ! them !bser'ed the Accused carr$ing the
*eceased d!wnstairs (&ec!rd :aba 3220 "ines 11C12? &ec!rd E!han
Stander 21330 "ines 13C11 and &ec!rd Carice Di"A!en 21.-0 "ines 1C3,.
APPROXIMATELY !3:3/3:4 (DR STIPP ARRIVED AT THE HOUSE OF THE
ACCUSED)
23-. >r Nh"engethwa made a ca"" t! securit$ at !3:1-9 Sh!rt"$ thereater0 he
witnessed securit$ guards arri'ing at the Sti##7s h!me (&ec!rd 22130
"ines 8C5,.
231. The e'idence sh!ws that it was Peter :aba.
232. Sh!rt"$ thereater he !bser'ed the securit$ guards and *r Sti## (in
dierent cars and !n dierent r!utes,0 dri'ing t! the h!use ! the
Accused.
233. The securit$ guard in the car was Peter :aba0 wh! arri'ed at the
Accused7s h!use at !3:.
233. *r Sti## arri'ed sh!rt"$ thereater (&ec!rd >r Nh"engethwa 22180 "ines
21C28,.
Page .5
238. Acc!rding t! *r Sti##7s e'idence and that ! E!han Stander and Carice
Di"A!en0 *r Sti## e9amined the *eceased at the h!use ! the Accused in
the #resence ! the Accused.
231. Thereater0 *r Sti## went !utside and met with E!han Stander0 wh! then
ca""ed 211 at !3:):!- in *r Sti##7s #resence. (&ec!rd *r Sti## 31.0
"ines 3C18 and 3180 "ines 1C. and E!han Stander 21310 "ines 8C.,
!3:):!- (TIME OF ,OHAN STANDER+S CALL TO NETCARE)
235. At !3:):!- E!han Stander made a ca"" t! Netcare 211.
23.. *r Sti## was #resent when E!han Stander made the #h!ne ca"" t! 211.
*r Sti## ga'e E!han Stander the number !r Netcare. (&ec!rd *r Sti##
31.0 "ines 3C18 and 3180 "ines 1C. and E!han Stander 21330 "ines 2C11,
!3:):14 (TIME OF DR STIPP+S SECOND ATTEMPTED CALL TO SECURITY)
232. *r Sti## tried t! ca"" securit$ !r the sec!nd time. (E9hibit J, This ca""
was made r!m the h!use ! the Accused. It was #r!bab"$ t! in!rm
them ab!ut the Emergenc$ Ser'ices c!ming t! the h!use ! the
Accused. The ca"" was n!t answered as sh!wn !n the te"e#h!ne data
(E9hibit J,.
28-. Acc!rding t! >r Stander7s e'idence0 he as%ed !ne ! the securit$ guards
wh! was #resent t! radi! the gate and urgent"$ get the #!"ice Aust ater
he ca""ed !r the ambu"ance (&ec!rd 21380 "ines 13C11,. @e ma$ ha'e
instructed the securit$ guard t! d! s! ater *r Sti## c!u"d n!t get h!"d !
Page ..
securit$ at -3:25 when *r Sti## attem#ted t! ca"" securit$.
!3:41:(. AMBULANCE ARRIVED AT THE SECURITY GATE OF THE
SILVER%OODS ESTATE
281. Ph!t! E9hibit )HHH+ de#icts the time ! the #aramedics arri'ing at the
main entrance gate t! Si"'erw!!ds Estate.
APPROXIMATELY !3:(! (ACCUSED %ENT UPSTAIRS)
282. Carice Di"A!en testiied that when the *eceased was #r!n!unced dead
b$ the #aramedics the time was !3:(!(&ec!rd 21.50 "ines 1C12,. This
acc!rds with the arri'a" ! the #aramedics sh!rt"$ ater !3:41.
283. The #aramedics needed t! see the identit$ d!cument ! the *eceased in
!rder t! i"" !ut and sign the )*ec"arati!n ! *eath+ !rm. The Accused
went u#stairs t! etch the Identit$ *!cument ! the *eceased and
returned with her handbag.
APPROXIMATELY !3:(( (THE POLICE ARRIVED AT THE HOUSE OF THE
ACCUSED)
283. Acc!rding t! C!"!ne" Dan &ensburg he arri'ed at the Accused7s h!use at
a##r!9imate"$ !3:4((&ec!rd 5350 "ines 2C11,. This c!u"d n!t be c!rrect0
as the P!"ice were n!t there when the Accused went u#stairs at
a##r!9imate"$ !3:(! t! etch the Identit$ *!cument ! the *eceased.
288. Dan &ensburg testiied that u#!n his arri'a" the #aramedics had a"read$
dec"ared the *eceased dead (&ec!rd 53.0 "ines 11C1.,.
Page .2
281. Acc!rding"$0 the P!"ice must ha'e arri'ed ater !3:(!. The trans"ati!n !
Dan &ensburg7s e'idence is that Dan &ensburg arri'ed at !3:((9
285. &eerence was made ab!'e that !ther #!"ice members arri'ed at m!re
!r "ess the same time.
DR STIPP AND THE CHRONOLOGY OF EVENTS
28.. <e indicated ab!'e that we w!u"d dea" with *r Sti##7s e'idence in
re"ati!n t! the time when materia" e'ents !ccurred0 t! dem!nstrate that
*r Sti##7s e'idence is unre"iab"e and in s!me instances a"se.
282. *r Sti##7s e'idence re"e'ant t!:
282.1 hearing the irst s!unds?
282.2 hearing screaming4sh!uting between the irst s!unds and the
sec!nd s!unds?
282.3 hearing the sec!nd s!unds?
282.3 g!ing t! the Accused7s h!use? and
282.8 assisting E!han Stander t! ca"" 2110
is n!t in dis#ute.
21-. @!we'er0 his e'idence as t! when certain e'ents t!!% #"ace is
unre"iab"e0 and in s!me instances tai"!red with the !bAecti'e ! assisting
the State7s a""egati!ns.
Page 2-
211. <e dea" in detai" with the instances where his e'idence is unre"iab"e
and4!r tai"!red in re"ati!n t! the time ! the e'ents in an anne9ure
mar%ed as Anne9ure A : )*r Sti## and the Chr!n!"!g$ ! E'ents+. <e
a"s! dea" in the anne9ure with urther c!ntradicti!ns in his e'idence
(unre"ated t! the time ! e'ents,.
212. <e sh!w c!nc"usi'e"$ in the anne9ure that *r Sti## was wr!ng in the
!""!wing as#ects:
212.1 that his irst ca"" t! securit$ did n!t g! thr!ugh?
212.2 that his sec!nd ca"" t! securit$ did g! thr!ugh?
212.3 that the Accused sh!uted he"# ater -3:250 i.e. ater he had
ca""ed securit$ !r the sec!nd time0 as at that time *r Sti## was
a"read$ at the Accused7s h!use and the Accused was in the
#resence ! !ther #e!#"e?
212.3 that he saw the Accused wa"%ing in the bathr!!m ater -3:3- as
at that time *r Sti## was at the Accused7s h!use and the
Accused was d!wnstairs?
212.8 in his time estimati!n between the irst and the sec!nd s!unds?
212.1 in seeing the "ights were !n in the Accused7s bathr!!m and the
h!use ! >r Nh"engethwa0 m!ments !r sh!rt"$ ater the irst
s!unds had !ccurred?
212.5 in hearing a w!man screaming.
Page 21
213. <e a"s! dem!nstrate in the anne9ure that *r Sti## in s!me res#ects
tai"!red his e'idence in an attem#t t! assist the State.
THE FIRST SOUNDS AND THE SECOND SOUNDS SHOTS OR THE
CRIC*ET BAT STRI*ING THE DOOR
213. It is the 'ersi!n ! the Accused that he ired !ur sh!ts in Buic%
successi!n and subseBuent"$0 when he rea"ised it might ha'e been the
*eceased wh! was in the t!i"et0 he struc% the t!i"et d!!r three times with
a cric%et bat. The d!!r #ane"s crac%ed as a resu"t ! which the Accused
c!u"d rem!'e s!me ! the d!!r #ane"s s! as t! gain entr$ t! the t!i"et.
218. There!re0 it is the Accused7s 'ersi!n that the irst s!unds were caused
b$ the gunsh!ts and the sec!nd s!unds were caused b$ the cric%et bat
stri%ing the d!!r.
211. It is n!t in dis#ute that the Accused ired !ur sh!ts and that the !ur
sh!ts #er!rated the t!i"et d!!r. It is a"s! n!t dis#uted that the t!i"et d!!r
was struc% b$ a cric%et bat.
215. In his bai" aida'it (E9hibit *,0 the Accused dea"t with the irst s!unds as
being the sh!ts and the sec!nd s!unds as being the s!unds caused b$
the cric%et bat stri%ing the d!!r.
21.. <hen the Accused de#!sed t! his bai" aida'it0 he was neither #ri'$ t!
the statements in the #!"ice d!c%et n!r t! the e'idence t! be "ed at the
bai" a##"icati!n. @e c!u"d n!t ha'e %n!wn that *r Sti## and >rs Sti##
w!u"d testi$ ab!ut the irst s!unds and the sec!nd s!unds. This
Page 22
under"ines his credibi"it$ in this regard.
212. On an ana"$sis ! the time"ines !r the chr!n!"!g$ ! e'ents0 the irst
s!unds w!u"d ha'e !ccurred at an$ time between 3:1 and 3914 and the
sec!nd s!unds at 3:1).
25-. It was !n"$ sh!rt"$ ater *r Sti## had testiied that the !ur sh!ts w!u"d
ha'e ata""$ inAured the *eceased and that she w!u"d n!t ha'e been ab"e
t! scream ater the sh!ts (&ec!rd 3380 "ines 1-C18, that the State #"aced
!n rec!rd (!r the irst time, that the sec!nd s!unds at !3:1) were the
gunsh!ts (&ec!rd 3310 "ine 23,.
251. This the State was forced t! d! as it was then e'ident that i the irst
s!unds were the gunsh!ts0 the )ema"e screaming+ heard b$ >r
E!hns!n0 >rs :urger0 *r Sti## and >rs Sti##0 c!u"d n!t be true.
252. It is res#ectu""$ submitted that the State7s e"ecti!n was !##!rtunistic0 but
se"Cdestructi'e. On the !ne hand the State7s case is that there was an
argument (ema"e '!ice ta"%ing, then the sh!ts. On the !ther hand the
State7s case is that there was a ema"e screaming0 then the sh!ts.
253. /actua""$0 the )arguing+ be!re the sh!ts re"ied u#!n b$ the State !n
acc!unt ! >rs 'an der >erwe7s e'idence and the ema"e screaming
be!re the sh!ts0 c!u"d n!t ha'e !ccurred during the same time #eri!d.
253. >rs 'an der >erwe heard the ema"e '!ice be!re the irst s!unds0 and
the cr$ing !ut ater the irst s!unds(the State7s a""egati!ns ! )arguing+
and then the sh!ts,. *r Sti##0 >rs Sti## and >r and >rs Nh"engethwa
Page 23
heard the screaming !r cr$ing !ut "!ud ater the irst s!unds.
258. Acc!rding t! the time ana"$sis (supra, >rs :urger0 >r E!hns!n and >rs
>!tshwane a"s! heard the screaming4cr$ing !ut "!ud ater the irst
s!unds.
251. On the State7s case0 thr!ugh the e'idence ! >rs 'an der >erwe0 there
was an argument and then the sh!ts (being the irst s!unds, and then
the screams. @!we'er0 the State e"ected t! ma%e the sec!nd s!unds
the gunsh!ts0 c!ntrar$ t! >rs 'an der >erwe7s e'idence.
255. :!th s!unds (the irst and sec!nd s!unds, c!u"d n!t ha'e been the !ur
gunsh!ts.
25.. Acc!rding t! *r Sti## the irst s!unds s!unded "i%e gunsh!ts and the
sec!nd s!unds s!unded simi"ar4identica" (&ec!rd 33-0 "ines 22C23,. It
was there!re n!t necessar$ t! ca"" an e9#ert t! prove that the s!und !
a cric%et bat stri%ing a d!!r ma$ s!und t! the "a$#ers!n "i%e gunsh!t
s!unds0 as !ne ! the s!unds must ha'e been gunsh!ts and the !ther
s!unds the cric%et bat stri%ing the d!!r.
252. <!"marans (&ec!rd 23.-0 "ines 12C22, and his re#!rt (E9hibit >>>0
#ara 31.., in an$ e'ent testiied that the cric%et bat stri%ing the d!!r
c!u"d resemb"e the gunsh!t s!unds t! a "a$#ers!n.
2.-. The State suggested in the e9aminati!n ! s!me ! its witnesses that the
inter'a" between gunsh!ts being ired0 as !##!sed t! a cric%et bat
re#eated"$ stri%ing a d!!r0 c!u"d n!t be the same. @!we'er0 a#art r!m
Page 23
ai"ing t! ca"" an$ witness t! testi$ in acc!rdance with this0 the State
ca""ed *r and >rs Sti##. The actua" #!siti!n is that *r and >rs Sti##
were unab"e t! distinguish between the s!unds !0 and inter'a"s between
gunsh!ts and a cric%et bat stri%ing the d!!r (&ec!rd 11-20 "ine 130 11-30
"ine .0 11130 "ines 1C180 E9hibit HH,.
2.1. The State has n!t #resented an$ e'idence !r #ut an$ statement t! the
Accused as t! what the irst s!unds w!u"d ha'e been0 i the$ had n!t
been the gunsh!ts.
2.2. The State must gi'e an e9#"anati!n !r the irst s!unds0 i the$ were n!t
the sh!ts0 as the State cann!t thin% the irst s!unds awa$. The$ were
intr!duced b$ *r Sti##0 >rs Sti##0 >rs 'an der >erwe and >rs
Nh"engethwa.
2.3. >rs 'an der >erwe heard !ur sh!ts in Buic% successi!n. It acc!rds with
the !ur sh!ts and the 'ersi!n ! the Accused.
2.3. >rs Sti## and *r Sti## heard three sh!ts in Buic% successi!n. It is
c!ncei'ab"e that the$ c!u"d ha'e been wr!ng in the number ! sh!ts (the
irst s!unds,.
2.8. *r Sti##7s e'idence is in an$ e'ent n!t re"iab"e with reerence t! a
number ! sh!ts. @e c!ntradicted himse" in regard t! the number !
s!unds in res#ect ! the sec!nd s!unds. In his statements he reerred
t! tw! t! three sh!ts and in his e'idence t! three sh!ts and then again t!
E!han Stander as !ur sh!ts. It must a"s! be b!rne in mind that *r Sti##
w!%e u# because ! the irst s!unds0 and as such0 a mista%e in hearing
Page 28
the number ! sh!ts !n wa%ing u#0 is #"ausib"e. <e ha'e a"s! sh!wn
that *r Sti##7s e'idence was raught with unre"iab"e e'idence.
2.1. The irst s!unds heard b$ *r and >rs Sti## caused *r Sti## t! ca""
securit$ at 3:1(:(1 t! re#!rt the sh!!ting. (E9hibit J,0 (Peter :aba0
&ec!rd 3250 "ines 15C2-., In additi!n0 he attem#ted t! ca"" 1-111 t!
re#!rt the sh!!ting. This was at !3:1)9
2.5. >rs Sti## had Aust w!%en u# because ! a b!ut ! c!ughing. <e wi""
dem!nstrate be"!w that0 when dea"ing with the screaming0 >rs Sti##7s
e'idence was unre"iab"e in materia" res#ects and that her ha'ing heard
the irst s!unds as !n"$ three sh!ts0 has n! guarantee ! re"iabi"it$.
2... <hat is signiicant ab!ut >rs Sti##7s statement is that she described the
irst s!unds she heard t! be sh!ts as s!unding "i%e gunsh!ts and the
subseBuent s!unds (at !3:1))0 a"th!ugh s!unding "i%e gunsh!ts0 as
three thud s!unds (&ec!rd 11150 "ine 28? 111.0 "ines 1C2 and 5C.,. The
three thud s!unds (as described b$ >rs Sti##, are c!nsistent with the
Accused stri%ing the t!i"et d!!r three times with the cric%et bat at !3:1).
2.2. >r E!hns!n and >rs :urger7s e'idence that the$ heard sh!ts (i.e. the
sec!nd s!unds, d!es n!t assist in ma%ing the sec!nd s!unds the
gunsh!ts. *r and >rs Sti##7s e'idence was that the irst and sec!nd
s!unds s!unded simi"ar.
22-. >r E!hns!n and >rs :urger were 155 metres awa$ when the$ heard
the sec!nd s!unds0 which in itse" c!u"d n!t acc!unt !r a re"iab"e
Page 21
identiicati!n. /urtherm!re0 the$ are n!t #ers!ns e9#erienced in
(c!rrect"$, identi$ing gunsh!ts (&ec!rd0 :urger 1830 "ines 1-C28 and
1830 "ines 1C., (&ec!rd0 E!hns!n 2110 "ines 1C3,.
221. I the sec!nd s!unds were the gunsh!ts0 there was in an$ e'ent n!t
en!ugh time !r the acti!ns "isted be"!w0 between the sh!ts and ma%ing
the ca"" t! E!han Stander at !3:1":!3 as we wi"" dem!nstrate hereunder.
222. Acc!rding t! >r E!hns!n he ca""ed securit$ at !3:1- and the durati!n !
the ca"" was 8. sec!nds. @e then went bac% t! the ba"c!n$. @e heard
screaming and then the sh!ts. This means that the sec!nd s!unds
c!u"d n!t ha'e been be!re !3:1):1(.
223. This acc!rds with *r Sti##7s e'idence that he tried t! ca"" 1-111 at !3:1).
@e had diicu"ties getting thr!ugh. @e then heard the sec!nd sh!ts.
>rs Sti## "!!%ed at the bedside c"!c% and saw that it was !3:1)9
223. C!nseBuent"$0 there was0 at best 1 minute and 38 sec!nds between the
sec!nd s!unds and the ca"" t! E!han Stander at !3:1":!3.
228. <e wi"" dem!nstrate be"!w that0 !n the acce#tab"e acts0 the !""!wing
acti!ns c!u"d ne'er it int! a the 1 minute0 38 sec!nds time rame.
221. The Accused ired !ur sh!ts at ab!ut !3:1):1(.
225. @e went bac% int! the bedr!!m. <e ign!re !r #resent #ur#!ses that
the Accused searched !r the *eceased in the bedr!!m as his e'idence
ma$ be dis#uted.
Page 25
22.. @e attached his #r!sthesis0 which w!u"d ha'e ta%en him ab!ut 3-
sec!nds. (&ec!rd 12-30 "ines 2C11,
222. The State7s c!ntenti!n that he did n!t attach his #r!sthesis0 but that he
remained !n his stum#s when he struc% the d!!r with the cric%et bat0
has n! substance. <e summarise the c!ncessi!ns b$ C!"!ne"
Dermeu"en in this regard and dea" in m!re detai" with his e'idence in an
anne9ure mar%ed as A116I046 B : &V64360861'.
222.1 C!"!ne" Dermeu"en c!nceded that the tw! mar%s !n the d!!r
identiied b$ him in c!urt as matching with the cric%et bat stri%ing
the d!!r0 when acc!rding t! him0 the Accused was !n his
stum#s0 a"s! matched with the cric%et bat when the Accused
#!siti!ned !n his #r!sthesis.
222.2 C!"!ne" Dermeu"en #r!essed n!t t! ha'e read the Accused7s
'ersi!n made at the bai" a##"icati!n. This is c!ntrar$ t! a"" the
!ther State e9#erts (Ca#t >angena and C!"!ne" 'an der Nest,
wh! had read the Accused7s 'ersi!n0 which was t! be e9#ected0
t! #ermit e9#erts t! c!nsider the 'ersi!n ! the Accused in the
c!nte9t ! their e9#ert 'iews and t! urnish !bAecti'e indings.
<hen C!"!ne" Dermeu"en rea"ised that his denia" in this regard
ma$ n!t carr$ c!n'icti!n0 he a""eged that he had !n"$ scanned
#ages ! the Accused7s 'ersi!n.
222.3 C!"!ne" Dermeu"en c!nceded that there was a third mar% (the
t!# mar%, which sh!wed that the d!!r was stuc% with the cric%et
Page 2.
bat.
222.3 @e c!nceded that the t!# mar% was t!! high t! be reached with
a stri%e ! the bat i the Accused was !n his stum#s when
stri%ing the d!!r0 un"ess the Accused m!'ed c"!ser t! the d!!r0
in which e'ent his #!wer t! brea% d!wn the d!!r ma$ be
c!m#r!mised.
222.8 @e ada#ted his e'idence t! m!'e the Accused c"!ser t! the d!!r
in !rder t! reach the t!# mar% t! a'!id ha'ing t! c!ness that the
t!# mar% was t!! high i the Accused was !n his stum#s. @e did
this n!twithstanding the act that he had n!t e'en attem#ted t!
match the t!# mar% with the cric%et bat i the Accused was c"!ser
t! the d!!r.
222.1 C!"!ne" Dermeu"en matched the mar% and t!!% #h!t!s ! the
matching (Ph!t!s II, but m$steri!us"$ !mitted t! inc"ude them
in his #h!t! a"bum.
222.5 *i9!n and <!"marans testiied that the t!# mar% matched the
cric%et bat stri%ing the d!!r when the Accused was #!siti!ned !n
his #r!sthesis (&ec!rd0 <!"marans 12110 "ines 23C28, (&ec!rd
<!"marans0 23810 "ines 1C18,.
222.. <hen it was #ut t! him that there w!u"d be e'idence that the t!#
mar% matched the cric%et bat0 he re#"ied G!)ady, if there is
evidence to that effect, that is fine. The day that " did the
investigation, " was happy to have proven that the cricket bat
Page 22
caused damage to the door and as reported in my affidavit
(&ec!rd 12220 "ines 1-C13, C"ear"$0 C!"!ne" Dermeu"en tried t!
a'!id the t!# mar% b$ sa$ing that his instructi!ns were t!
determine whether the cric%et bat damaged the d!!r (and n!t t!
acc!unt !r e'er$ such mar%,.
222.2 In reCe9aminati!n Dermeu"en said that the t!# mar% did n!t
brea% the d!!r t! the same e9tent as the "!wer mar% ! the tw!
did. (&ec!rd 12280 "ines 2C8, This ma%es it c"ear that C!"!ne"
Dermeu"en :
222.2.1 matched the t!# mar% with the cric%et bat?
222.2.2 t!!% #h!t!s ! it matching (Ph!t!s II1C8,?
222.2.3 %new that the stri%e ! the t!# mar% b$ the cric%et bat
caused s!me damage t! the d!!r?
222.2.3 rem!'ed #h!t!gra#hs II1C8 r!m his a"bum as the
t!# mar% was t!! high t! su##!rt his the!r$ that the
Accused was #!siti!ned !n his stum#s when he
struc% the d!!r.
222.1- *r Derse"d0 in an$ e'ent0 made it c"ear that the Accused c!u"d
n!t hit the d!!r with the cric%et bat when !n his stum#s0 and i
he was h!"ding the bat with !ne hand0 he w!u"d n!t ha'e had
suicient !rce t! cause an$ damage t! the d!!r. (&ec!rd 28210
"ines 13C28 and 28250 "ines 1C1, because he w!u"d overB
Page 1--
balance and fall down ... due t! the act that he has diicu"t$
ba"ancing !n his stum#s i he is carr$ing !r h!"ding s!mething
with tw! hands.
222.11 >r Ne" did n!t dis#ute *r Derse"d7s e'idence in this regard0 n!r
did he e'er as% the Accused during cr!ssCe9aminati!n t!
dem!nstrate h!w he struc% the d!!r whi"st !n his stum#s0 e'en
th!ugh he as%ed him t! dem!nstrate this whi"st !n his
#r!sthetics.
3--. The Accused %ic%ed the d!!r. The #r!sthesis !!t#rint caused b$ the
%ic%ing was e'ident. (*i9!n0 &ec!rd 12180 "ines 2-C28 and 12110 "ines 1C
22? Ph!t!s EEE2.1-,. <!"marans testiied as t! when the sam#"e ! the
!!t#rint #r!sthesis was ta%en and handed t! *i9!n (&ec!rd 23.10 "ines
1C11,. C!"!ne" Dermeu"en did n!t e9amine the %ic% mar% as it was n!t
#art ! his instructi!ns. (&ec!rd0 Dermeu"en 1120 "ines .C11,0
3-1. @e went bac% t! the bedr!!m t! etch the cric%et bat.
3-2. @e went bac% t! the bathr!!m and struc% the t!i"et d!!r three times with
the cric%et bat = this damaged the d!!r.
3-3. @e rem!'ed s!me ! the #ane"s ! the d!!r t! a""!w him t! see inside
the t!i"et.
3-3. @e "!!%ed !r and !und the %e$ and un"!c%ed the d!!r.
3-8. @e went inside the t!i"et and strugg"ed t! get the *eceased !ut ! the
Page 1-1
t!i"et.
3-1. @e tried t! #h!ne r!m the ce"" #h!ne ! the *eceased but c!u"d n!t as
he did n!t %n!w her #ass c!de.
3-5. @e went bac% t! the bedr!!m t! etch his ce"" #h!nes r!m the bedside
tab"e. The b"!!d mar%s in the area ! the bedside tab"e su##!rt his
'ersi!n that he c!""ected his #h!nes r!m the bedside tab"e and made
the ca"" t! E!han Stander ater he had !#ened the t!i"et d!!r and #u""ed
the *eceased !ut. The b"!!d r!m his hands transerred (castC!, t! the
"et bedside tab"e where the ce"" #h!nes were. C!"!ne" 'an der Nest
stated that castC! !ccurred when blood would move from your hands
onto surrounding ob$ects. (&ec!rd 1-..0 "ines 1C12,
3-.. C"ear"$0 e'en "ea'ing aside the dis#uted m!'ements b$ the Accused0 the
sec!nd s!unds c!u"d n!t ha'e been the sh!ts as there was insuicient
time between !3:1):1( and !3:1":!( !r a"" the acti!ns reerred t!
ab!'e t! ha'e ta%en #"ace.
3-2. There is a"s! a credibi"it$ #r!b"em in additi!n t! re"iabi"it$ suicient"$ s!
t! indicate that >r E!hns!n and >rs :urger7s e'idence c!ncerning the
sec!nd s!unds sh!u"d n!t be acce#ted with!ut cauti!n and c!ncern:
3-2.1 >rs 'an der >erwe heard !ur sh!ts0 which is c!nsistent with the
!ur sh!ts ired.
3-2.2 >rs :urger was adamant that she had heard !ur sh!ts. She
e'en Austiied her hearing !ur sh!ts because ! her musica"
Page 1-2
bac%gr!und. She testiied that she had heard !ur sh!ts 'er$
c"ear"$ as she started with music at a 'er$ $!ung age0 she c!u"d
hear rh$thm aut!matica""$ and testiied that0 )there was no doubt
for me. " heard four shots. (&ec!rd 210 "ines 13C12,.
3-2.3 Incredib"$0 in the edited N!tes (E9hibits O1CO3, she reca""ed
four or five shots0 which e9#!ses her a""eged"$ accurate"$ and
#recise"$ remembering !ur sh!ts. This sh!ws that >rs :urger
ada#ted her e'idence r!m uncertaint$ ab!ut the number !
sh!ts (when the e'ents were sti"" recent, t! an abs!"ute
res!"uti!n ! !ur sh!ts.
3-2.3 There is a mar%ed dierence between deinite"$ hearing 3 sh!ts
as !##!sed t! hearing about A to 1 sh!ts which in itse"
e9#!ses uncertaint$ a#art r!m untruthu"ness.
3-2.8 >r E!hns!n c!nceded in his e'idence that his wie had t!"d him
she counted four or five shots (&ec!rd 2510 >r E!hns!n0 "ines
13 and 18,.
3-2.1 >r E!hns!n heard a '!""e$ ! sh!ts (&ec!rd0 2-20 "ines 2C30 2-30
"ine 13,. This was c!nirmed in his statement (E9hibit N0 #ar 1,
and in his n!tes (E9hibit O,. There!re0 he was in n! #!siti!n t!
gi'e an$ c!m!rt t! the C!urt that what he had heard0 were in
act the 3 gunsh!ts.
3-2.5 >!re!'er0 n!C!ne e"se heard !ur sh!ts (as the sec!nd s!unds,:
Page 1-3
3-2.5.1 The Accused struc% the d!!r three times?
3-2.5.2 *r Sti## heard tw! t! three !r three sh!ts?
3-2.5.3 >rs Sti## heard three sh!ts at a time she had a
heightened state ! awareness?
3-2.5.3 >r E!hns!n heard a number ! sh!ts !r a '!""e$ !
sh!ts
31-. Ca#tain >angena0 in his e'idence0 ga'e s!me su##!rt t! >rs :urger7s
e'idence that she heard a sh!t0 then a #ause and then 3 urther sh!ts.
@e testiied that the traAect!ries and w!unding were c!nsistent with a
irst sh!t being ired0 then an inter'a"0 and then three urther sh!ts.
There is n!thing in the traAect!ries ! the irst and sec!nd sh!ts0 which
w!u"d Austi$ an inter'a"0 n!r is there an$thing in his re#!rt ab!ut it.
311. A"th!ugh Ca#tain >angena was a g!!d witness it d!es n!t mean that a""
his 'iews must be c!rrect.
312. <e submit that it was sim#"$ n!t #!ssib"e !r him t! sa$ with an$ degree
! certaint$0 b$ "!!%ing at the traAect!ries and w!unding0 that there was
an inter'a" between the irst and sec!nd sh!t #articu"ar"$ i that inter'a"
was n!t heard b$ *r Sti## and >rs Sti## and >r E!hns!n.
313. /urtherm!re0 this #art ! Ca#tain >angena7s e'idence is inc!nsistent
with the !ur sh!ts in Buic% successi!n heard b$ >rs 'an der >erwe.
313. It is high"$ im#r!bab"e that the sec!nd s!unds c!u"d ha'e been the
Page 1-3
gunsh!ts. <e dea" with the im#r!babi"ities hereunder.
318. The witnesses heard the Accused screaming4sh!uting !r he"# ater the
irst s!unds as #er the time"ine ana"$sis ab!'e.
311. It d!es n!t ma%e sense and is high"$ im#r!bab"e that the Accused w!u"d
ha'e sh!uted4screamed !r he"# (be!re the sec!nd s!unds,and in
#articu"ar screamed as i being attac%ed (acc!rding t! >r E!hns!n and
>rs :urger,0 i he was threatening the *eceased and was ab!ut t! %i""
her.
315. It d!es n!t ma%e sense that the Accused w!u"d ha'e been cr$ing !ut
"!ud"$ as th!ugh it was a cry of pain (>rs >!tshwane0 &ec!rd 228-0
"ines 11C12,0 and cr$ing !ut "!ud"$ s!unding as i !ne was 'er$ des#erate
!r he"#0 in danger (&ec!rd0 >r Nh"engethwa0 22-20 "ines 23C28 and
221-0 "ines 1C2, and wh! needed urgent he"# (&ec!rd0 >rs
Nh"engethwa0 &ec!rd 223.0 "ines 1.C2-,0 i he was threatening the
*eceased and ab!ut t! %i"" her.
31.. It d!es ma%e sense that he w!u"d ha'e sh!uted !r he"# ater the irst
s!unds0 as he had b$ then ired the sh!ts and that he w!u"d ha'e
screamed as b$ then he rea"ised the true e9istence ! the situati!n. It
w!u"d n!t ma%e sense that he w!u"d ha'e sh!uted !r he"# be!re
sh!!ting the *eceased.
312. It cann!t be suggested that the Accused sh!uted !r he"# ater the
sec!nd s!unds as this w!u"d be c!ntrar$ t! the e'idence !:
Page 1-8
312.1 >rs :urger?
312.2 >r E!hns!n?
312.3 >rs Di"A!en?
312.3 >rs Nh"engethwa.
32-. >r E!hns!n and >rs :urger had te"e#h!ne ca"" data (!bAecti'e e'idence,
t! sh!w the Accused sh!uted !r he"# be!re !3:1- (i.e. be!re the
sec!nd s!unds at !3:1),.
321. >rs Di"A!en heard the sh!uts !r he"# a##r!9imate"$ i'e minutes be!re
as%ing E!han Stander what was wr!ng (which was straight ater he
recei'ed the ca"" r!m the Accused at !3:1",.
322. >rs Nh"engethwa7s e'idence that the sh!uting !r he"# b$ the Accused
was be!re !3:1-, is a"s! c!nirmed b$ the te"e#h!ne data ! >rs
Nh"engethwa.
323. *r Sti##7s attem#t t! change the time ! the Accused sh!uting !r he"#
r!m ab!ut !3:1( t! ab!ut 3:3! has n! credibi"it$ and re"iabi"it$. A#art
r!m c!ntradicting the !ther witnesses0 his e'idence in this res#ect was
sim#"$ n!t #!ssib"e as dea"t with ab!'e.
323. A urther diicu"t$ !r the State is that Dermeu"en7s e'idence0 c!nirmed
b$ *i9!n and <!"marans0 is that the d!!r was damaged b$ the cric%et
bat0 ater the sh!ts had been ired. (&ec!rd0 Dermeu"en 1850 "ines 13C
18,0 (&ec!rd0 <!"marans 235.00 "ines 2C18,0 (&ec!rd0 *i9!n 12120 "ines
11C13,.
Page 1-1
328. It is c!mm!n cause that when the Accused ired the sh!ts0 he was !n his
stum#s.
321. T! stri%e the d!!r with the necessar$ !rce0 thus causing it t! crac%0 the
Accused must ha'e been #!siti!ned !n his #r!stheses. *r Derse"d7s
e'idence was that the Accused cann!t stri%e the d!!r with a cric%et bat
whi"st !n his stum#s as he had n! ba"ance. (&ec!rd 28210 "ines 21C28
and 28250 "ines 1C1,.
325. There is a urther #r!b"em. >rs Sti## testiied that sh!rt"$ be!re !3:1)
her husband had t!"d her he had seen s!me!ne m!'ing r!m right t! "et
in the bathr!!m.
32.. It was the Accused wa"%ing in the bathr!!m. <e ha'e dem!nstrated
ab!'e that he was !n his #r!sthesis !therwise *r Sti## w!u"d n!t ha'e
been ab"e t! !bser'e his air c!m#"e9i!n and he w!u"d deinite"$ n!t
ha'e seen him at a"" thr!ugh the t!# ha" ! the bathr!!m wind!ws t! the
right.
322. T! be ab"e t! see him thr!ugh the t!# ha" ! the right side ! the
bathr!!m wind!w the Accused must ha'e been !n his #r!stheses. (See
the measurements ! *i9!n at &ec!rd 12850 "ines 2C8,. T! be ab"e t! see
a air c!m#"e9i!n thr!ugh the !#en wind!w0 the Accused must ha'e
been !n his #r!sthesis. (Derse"d &ec!rd 28..0 "ines 1C1, The Accused0
when he wa"%s !n his stum#s is 133 cm in height due t! the
dis#"acement ! his "et hee" #ad and 181 cm when he is standing,. In
this case0 the Accused was seen wa"%ing. @is )wa"%ing+ height ! 133
Page 1-5
cm w!u"d !n"$ a""!w *r Sti## t! see his head thr!ugh the "et bathr!!m
wind!w0 and certain"$ n!t a #ers!n0 !r si"h!uette0 e'en "ess s! thr!ugh
the t!# ha" ! the bathr!!m wind!ws !n the right. (*i9!n0 Ph!t!s 2.3 =
2.5, (&ec!rd 12880 "ines 1C28? 12810 "ines 1C28? 12850 "ines 1C8,
33-. <hether the #ers!n (m!de", used in the #h!t!s was sh!rter than the
Accused0 ma%es n! dierence as acc!rding t! *r Derse"d the Accused
was ab!ut 1- t! 12 cms )sh!rter+ when he wa"%ed due t! the eect ! his
"et hee" dis#"acement. /urtherm!re0 the height w!u"d ma%e n!
dierence t! *r Sti##7s !bser'ati!ns thr!ugh the right t!# ha" ! the
bathr!!m wind!w0 as the t!# ha" ! the wind!w is substantia""$ higher
than the Accused !n his stum#s. The Accused w!u"d n!t ha'e been
'isib"e thr!ugh the t!# ha" ! the wind!w i he was !n his stum#s.
331. It must be b!rne in mind that *r Sti## identiied the #ers!n thr!ugh the
t!# ha" ! the bathr!!m wind!w as s!me!ne with a air c!m#"e9i!n.
The Accused did n!t ha'e a shirt !n and his air c!m#"e9i!n w!u"d !n"$
ha'e been 'isib"e thr!ugh the t!# ha" ! the right bathr!!m i he was !n
his #r!sthetic "egs.
332. The *eceased was wearing a b"ac% t!#0 whi"st the Accused was w!re n!
shirt at a"".
333. It d!es n!t ma%e sense that he was !n his #r!sthesis sh!rt"$ be!re
3:1)0 but bac% !n his stum#s0 when he ired the sh!ts0 which0 acc!rding
t! the State0 !ccurred 'er$ sh!rt"$ thereater at 3:1).
333. It ma%es n! sense that0 i the *eceased was in the t!i"et behind a "!c%ed
Page 1-.
d!!r between the irst and the sec!nd s!unds (a##r!9imate"$ 8
minutes,0 she w!u"d n!t ha'e used her ce"" #h!ne t! #h!ne !r message
!r he"#. She had am#"e time t! hide behind the t!i"et wa"" t! the "et !
the t!i"et d!!r.
338. @er b"adder was em#t$. N! urine was !und in her c"!thing4"egs t!
indicate that she had "!st c!ntr!" ! her b"adder. Acc!rding t! Pr!ess!r
Saa$man it is indicati'e that she em#tied her b"adder sh!rt"$ be!re her
death. (&ec!rd 83.0 "ines 5C2, This is m!re c!nsistent with the
*eceased g!ing t! the t!i"et t! re"ie'e herse" than her "eeing t! the
t!i"et t! see% reuge.
331. The State has a""eged that the *eceased was standing direct"$ in r!nt !
the t!i"et d!!r0 ta"%ing t! the Accused. I she %new her "ie was in danger
and i he had been hitting the d!!r with the cric%et bat be!re iring
thr!ugh the d!!r she w!u"d n!t ha'e been standing right in r!nt ! the
d!!r.
335. <e submit that it is n!t a matter ! whether !r n!t the Accused sh!u"d
recei'e the beneit ! the d!ubt in re"ati!n t! what the irst s!unds were
and what the sec!nd s!unds were. An ana"$sis (su#ra, ! the e'idence0
e'en i the e'idence ! the Accused is e9c"uded0 ma%es it c"ear that the
irst s!unds were the gunsh!ts and the sec!nd s!unds the cric%et bat
stri%ing the d!!r.
Page 1-2
THE SCREAMING : THE DECEASED OR THE ACCUSED
SYNOPSIS OF THE SCREAMING
33.. <e ha'e assessed the e'idence ab!'e t! dem!nstrate that the irst
s!unds were the gunsh!ts. The ine'itab"e c!nseBuence ! that is it c!u"d
n!t ha'e been the *eceased wh! was screaming as she was ata""$
w!unded and w!u"d n!t ha'e been ca#ab"e ! screaming ater the !ur
sh!ts. See in this regard the e'idence ! Pr!ess!r Saa$man (&ec!rd
8280 "ines 12C2-0 D!". 1,0 *r Sti## (&ec!rd 3380 "ines 2C130 D!" 3, and
Pr!ess!r :!tha (&ec!rd 13130 "ines 1C3 and "ines 13C2-0 D!" 11,
reerred t! ab!'e.
332. E'en i the irst s!unds were n!t the sh!ts0 the e'idence !n beha" ! the
State b$ *r and >rs Sti##0 >r E!hns!n and >rs :urger in regard t! the
ema"e a""eged"$ screaming cann!t satis$ the C!urt suicient"$ s! t!
draw the inerence as the !n"$ reas!nab"e inerence0 e9c"uding an$ !ther
reas!nab"e inerence that it was the *eceased wh! screamed0 as their
e'idence:
332.1 was unre"iab"e?
332.2 e9aggerated?
332.3 c!ntradict!r$?
332.3 inc!nsistent with #r!babi"ities? and
332.8 reuted b$ the e'idence ! >r and >rs Nh"engethwa0 >rs
>!tshwane and >rs Dan *er >erwe.
Page 11-
33-. <e reer hereunder t! the e'idence re"e'ant t! screaming t!
substantiate the a!reg!ing submissi!n made b$ us.
331. It a"s! ma%es n! sense that a man was a"s! screaming !ut and
screaming !r he"# #ri!r t! the sec!nd s!unds i it was the *eceased
wh! was being threatened. See the e'idence ! >rs E!hns!n0 >r
:urger0 *r Sti##0 Carice Di"A!en and >rs Nh"engethwa dea"t with ab!'e.
332. I'an ;in0 the ac!ustic e9#ert e9#"ained at #age 3 and 3 ! his &e#!rt
(E9hibit III, that hearing is a #h$si!"!gica" #r!cess ! recei'ing audib"e
s!unds0 but "istening in'!"'es an inter#retati!n b$ the brain. An$
inter#retati!n b$ the brain is subAecti'e and in"uenced b$ man$ act!rs.
C!nseBuent"$0 it ma$ be ris%$ t! acce#t the re"iabi"it$ ! a witness
c!ncerning the inter#retati!n ! screaming in the absence ! su##!rting
!bAecti'e e'idence
23
.
333. There is n! !bAecti'e e'idence t! su##!rt the subAecti'e inter#retati!n !
the screaming0 heard b$ the witnesses.
333. >r ;in e9#"ained that it w!u"d be inc!rrect t! re"iab"$ assume0 with!ut
e9ce#ti!n0 that a ema"e scream c!u"d n!t s!und "i%e a ma"e scream !r
'ice 'ersa (E9hibit III #ar 8.1 and 8.5,.
338. It is c"ear r!m >r ;in7s re#!rt and e'idence that a C!urt sh!u"d be
cauti!us t! acce#t the re"iabi"it$ per se ! witnesses wh! #r!essed that
the$ c!u"d discern between a ma"e and a ema"e scream. This bec!mes
e'en m!re c!m#"icated (and unre"iab"e, where the$ a"s! heard a man
23
See #ages 3 and 3 ! the Ac!ustic &e#!rt b$ I'an ;in (E9hibit III,
Page 111
screaming in circumstances where his screaming !r he"#0 as i he was
in danger0 d!es n!t it in with the State7s case that the Accused was the
aggress!r. The absence ! !bAecti'e e'idence in this regard increases
the ris% ! unre"iabi"it$.
331. >r ;in7s e'idence is c"ear0 that i the #ers!n wh! was screaming0 was in
the t!i"et0 the s!und w!u"d ha'e been 22 d:a0 with an !#en bedr!!m
wind!w in the E!hns!n7s h!use (155m awa$,. This means that it was
e9treme"$ un"i%e"$ !r screams emanating r!m the t!i"et0 t! be audib"e.
335. >!re im#!rtant"$0 such a""eged screams w!u"d deinite"$ n!t ha'e been
inte""igib"e which means that a witness in the bedr!!m 155 metres
awa$ w!u"d n!t ha'e been ab"e t! discern between a ma"e and ema"e0
as we"" as the em!ti!ns in the '!ice ! such a #ers!n.
33.. E'en i an!ther 1- d:a is added t! the 22 d:a0 it remains un"i%e"$ that it
wi"" be audib"e0 whi"st sti"" n!t inte""igib"e. E'en at 32 d:A a witness c!u"d
n!t discern between a ma"e !r a ema"e scream0 "et a"!ne identi$ing
hearing em!ti!ns in the screams.
332. It was dem!nstrated in C!urt that when n!C!ne was ta"%ing0 the s!und in
the C!urt0 main"$ caused b$ the rec!rding machines and a ew #e!#"e
t$#ing0 was between 3- and 31 d:a (&ec!rd 21210 "ines 1-C11,. That
dem!nstrated c!n'incing"$ that e'en the s!und ! 22 d:a u# t! 32 d:a
c!u"d n!t ha'e aw!%en >r E!hns!n !r >rs :urger and the screaming
emanating r!m the t!i"et c!u"d n!t ha'e been inter#reted !r discerned
b$ them0 as the screams w!u"d deinite"$ n!t ha'e been inte""igib"e.
Page 112
38-. This is im#!rtant as !n the State7s case0 the *eceased w!u"d ha'e been
in the t!i"et at the time ! her screaming. It is #!ssib"e that0 !n the State7s
'ersi!n the *eceased c!u"d ha'e screamed !n the wa$ t! the t!i"et0 but
that sti"" d!es n!t e9#"ain the screaming and inter#retati!n ! the
screaming be!re the sec!nd s!unds0 as she must ha'e been in the
t!i"et at that time.
381. This means that >r E!hns!n and >rs :urger c!u"d n!t ha'e heard the
screams in their bedr!!m inte""igib"$ i the screams emanated r!m the
t!i"et0 which means that the$ w!u"d n!t ha'e been ab"e t! re"iab"$
discern between a ma"e !r ema"e '!ice0 as we"" as the em!ti!ns there!.
382. It is signiicant that >rs :urger7s descri#ti!n ! the screams as petrified0
b"!!dcurd"ing0 "ieCthreatening0 etc.0 did n!t !rm #art ! the n!tes (E9hibit
O1C3, !r her statement.
383. It is n!t acce#ted that she heard a"" the em!ti!ns and was ab"e t!
discern '!ices and em!ti!ns as she has a""eged.
383. She remained in the bedr!!m and w!u"d n!t ha'e been ab"e t! hear the
w!man7s screams as being earu" (&ec!rd .30 "ine 1,0 #etriied (&ec!rd
230 "ine 23,0 b"!!dcurd"ing (&ec!rd 380 "ines 12C1.,0 terrib"e (&ec!rd 2.0
"ines 2C1- and 22,0 earCstric%en (&ec!rd 510 "ine 28 and &ec!rd 550 "ine
1, !r "ieCthreatening screams and thus describing the screams Aust
be!re the sh!ts as worse and more intense (&ec!rd 3-0 "ines 13C12,0
climaxing (&ec!rd 310 "ines 1C2, and then b"!!dcurd"ing0 the
anxiousness in her voice. The fear. (&ec!rd 380 "ines 15C1.,0 very
Page 113
intense (&ec!rd 130 "ine 8, and absolute petrified screams (&ec!rd 880
"ine 2,.
388. It is c"ear r!m the ac!ustic e'idence that >rs :urger w!u"d n!t ha'e
been ab"e t! discern '!ices !r em!ti!ns in her bedr!!m i the screams
emanated r!m the t!i"et. E'en i an!ther 1- d:A be added t! the 22
d:A in her bedr!!m0 the screaming w!u"d sti"" n!t ha'e been inte""igib"e.
381. >rs :urger7s abi"it$ t! hear screams emanating r!m the t!i"et0 "et a"!ne
hear the screams inte""igibi"it$0 bec!mes m!re sus#ect i regard is had t!
the act that d!gs were bar%ing at the time (&ec!rd0 Carice Di"A!en0 2153
"ines 1C30 D!" 28,0 as the bar%ing ! the d!gs w!u"d ha'e increased the
ambient s!und "e'e"0 which w!u"d ha'e made it )e9treme"$ un"i%e"$ t! be
audib"e+ in her bedr!!m (i a scream emanated r!m the t!i"et, (&ec!rd0
;in 218.0 "ines 12C21,. The audibi"it$ is n!t t!! re"e'ant0 as the screams
w!u"d !n an$ 'ersi!n n!t ha'e been inte""igib"e0 which means she w!u"d
n!t ha'e been ab"e t! discern em!ti!ns as described b$ her.
385. <hat is signiicant is that >r E!hns!n ga'e n! descri#ti!n ! the
screams as being b"!!dcurd"ing !r #etri$ing as #er >rs :urger7s
e'idence. @is e'idence in this regard did n!t change during cr!ssC
e9aminati!n.
38.. <hen he was !n the ba"c!n$ he th!ught that #e!#"e were being
attac%ed in their h!use because the man and w!man were ca""ing !r
he"# and that the screams did n!t s!und "i%e ighting0 but m!re "i%e #anic
and distress ca""s ! s!me!ne being attac%ed (emphasis added7.
Page 113
382. In his n!tes0 aida'it0 e'idence in chie and cr!ssCe9aminati!n he did n!t
gi'e an$ descri#ti!n that the screams at that #!int in time were
#etri$ing0 b"!!dcurd"ing !r terri$ing. This !nce again e9#!ses the
unacce#tabi"it$ ! the e'idence ! >rs :urger0 wh! remained in the
bedr!!m0 but #r!essed t! be ab"e t! discern between em!ti!ns0
c!ntrar$ t! the e'idence ! >r E!hns!n and that ! the ac!ustics e9#ert.
31-. >r E!hns!n7s e'idence was that0 whi"st in the bedr!!m0 he "ited his
head t! "isten careu""$ that he had indeed heard screams. @e went t!
the #ati! t! hear i he c!u"d hear an$ detai" (&ec!rd 2120 "ines 1-C130 D!"
3,. I he had t! "isten !r detai" in the screams !n the #ati!0 it sh!ws that
the screams were n!t c"ear in the bedr!!m. It deies >rs :urger7s
e'idence that she c!u"d c"ear"$ in the bedr!!m hear a"" the em!ti!n and
intensit$ ! the screams.
311. It d!es n!t assist the State t! suggest the screaming heard b$ >r
E!hns!n came r!m the bedr!!m0 the bathr!!m and then r!m the t!i"et:
311.1 The *eceased was a""eged"$ !n"$ heard screaming ater the irst
s!unds. *r and >rs Sti## said that the irst s!unds were simi"ar
t! the sec!nd s!unds. The State did n!t (and c!u"d n!t, #resent
e'idence that the irst s!unds came r!m a dierent "!cati!n0
c!ntrar$ t! the ab!'e e'idence.
311.2 As the e'idence ! >r E!hns!n and >rs :urger was n!t that the
screaming was "!uder at irst (because it came r!m the
bedr!!m and bathr!!m, and thereater s!ter (because it then
Page 118
came r!m the t!i"et,?
311.3 It cann!t be argued that the *eceased was n!t in the t!i"et r!m
at "east -3:18 !nwards !n the State7s c!ntenti!ns. On the
c!ntrar$0 the State7s case is that she "ed t! the t!i"et0 which
w!u"d ha'e "et a 'er$ sh!rt time !r screaming t! !ccur !utside
the t!i"et. The e'idence suggests that the screaming "asted !r
s!me time.
312. @!we'er0 i the sh!uting t!!% #"ace r!m the ba"c!n$ and the screaming
r!m the bedr!!m and bathr!!m0 then the screaming w!u"d ha'e been
audib"e and #!ssib"$ inte""igib"e in >rs :urger and >r E!hns!n7s
bedr!!m. See in this regard the &esu"ts Summar$ in E9hibit III.
313. The Accused7s 'ersi!n was that he sh!uted !r he"# r!m the ba"c!n$0
and screamed !n the wa$ t! the bathr!!m0 as we"" as in the bathr!!m.
313. As stated ab!'e0 >rs :urger c!u"d !n"$ ha'e been ab"e t! inte""igib"$
hear the screams0 i the screams emanated r!m the ba"c!n$0 the
bedr!!m and the bathr!!m.
318. The credibi"it$ and re"iabi"it$ ! >r E!hns!n0 as a witness0 are urther
c!m#r!mised b$ the act that it is c"ear"$ e'ident that he discussed his
e'idence with >rs :urger and ada#ted his e'idence in !rder t! see% t!
c!rr!b!rate her e'idence. This wi"" be dea"t with hereunder and in the
anne9ure mar%ed as A116I046 &C' : &S>46?3<1D+.
311. <e ha'e dem!nstrated ab!'e that the screams !ccurred between ab!ut
Page 111
!3:14 t! !3:1)0 which means that the screams heard b$ >r E!hns!n
were a"s! the screams heard b$ >rs :urger0 *r Sti## and >rs Sti##.
315. The act that >r E!hns!n heard screams inte""igib"$0 means that the
screams emanated r!m the bedr!!m0 bathr!!m and ba"c!n$ and n!t
r!m the t!i"et. This means that it c!u"d n!t ha'e been the *eceased.
31.. >!re!'er0 as *r and >rs Sti## and >r E!hns!n a"s! heard the
screaming at the same time0 it must ha'e emanated r!m the "!cati!n
which made it #!ssib"e !r >rs :urger t! hear inte""igib"$.
312. As stated be!re0 i it was n!t emanating r!m the t!i"et0 it c!u"d !n"$
ha'e been the Accused screaming.
35-. >r E!hns!n0 >rs :urger and *r and >rs Sti##7s e'idence was that the$
heard a ema"e and a ma"e screaming.
351. I the Accused was ab!ut t! %i"" the *eceased0 there was n! reas!n !r
him t! scream in a earu" state as E!hns!n and :urger inter#reted his
screams t! be as !""!ws: " was convinced that that woman was being
attacked, she and her husband were being attacked in their house. " was
convinced it was an attack in the house through robbers (&ec!rd0 >rs
:urger0 12,. In the n!tes E9hibits O10 O2 and O3 the screaming b$ the
man and w!man was inter#reted b$ them that " was convinced those
people were attacked in their homeL especially because we heard a
woman and a man calling for helpL.we were convinced that what we
heard were the calls of help of people who were being attacked in their
house.
Page 115
352. /urtherm!re0 it is signiicant that the ma"e screams were heard at
dierent times.
352.1 *r Sti## testiied that he th!ught he had heard a ma"e7s '!ice
interming"ed with a ema"e7s '!ice0 be!re he went inside t!
ma%e the ca""s and that he had heard n! !ther screaming ater
that (see &ec!rd 3220 "ines 3C.0 33.0 "ines 23 and 280 3320 "ines
1C20 D!" 30 3130 "ines 1C8 and 3110 "ines 3C230 D!" 8,. This was
be!re -3:18.
352.2 >rs Sti## testiied that she had heard the man screaming Aust
be!re the sec!nd sh!ts (which was at -3:15 (&ec!rd 11-80 "ines
1C5 and 11320 "ines 2-C280 D!" 13,.
352.3 It is e'ident that b!th ! them heard a man screaming at dierent
times that e'ening0 which means that a ma"e was screaming
be!re -3:18 and a"s! be!re -3:15.
352.3 >r E!hns!n and >rs :urger heard a man screaming4sh!uting !r
he"#. PThe$ described the man7s screams as screams as th!ugh
he was being attac%ed.Q
353. This means that there was c!ntinu!us screaming b$ a man0 which is
c!nsistent with the Accused7s 'ersi!n and inc!nsistent with the State7s
c!ntenti!n.
353. >r and >rs Nh"engethwa0 as we"" as >rs >!tshwane0 as the immediate
neighb!urs and being in c"!se #r!9imit$0 heard a man cr$ing !ut "!ud0
Page 11.
and n!t a w!man screaming0 at the same time >rs :urger0 >r E!hns!n
and *r and >rs Sti## heard a ema"e screaming.
358. >rs Dan *er >erwe heard the screaming as a cr$ing !ut "!ud at the
same time. She th!ught it was a w!man0 but her husband t!"d her that it
was the Accused.
351. The cr$ing !ut "!ud heard b$ the immediate neighb!urs !ccurred at the
same time as the screaming and was described as a ma"e cr$ing !ut in a
high #itched '!ice. The '!ice ! the Accused #itches when he gets
an9i!us. This was c"ear r!m his e'idence as #er an e9tract that wi"" be
#"a$ed in C!urt.
355. It d!es n!t assist the case t! c!ntend that the screaming was n!t the
same as the cr$ing !ut "!ud. The dierence "ies in its descri#ti!n and n!t
in the screaming !r cr$ing !ut "!ud.
35.. >rs Nh"engethwa imitated in C!urt what she meant b$ cr$ing !ut "!ud. It
resemb"ed screaming in a high #itched '!ice (&ec!rd 223.0 "ines 23C280
D!" 21,. She said that it was a ma"e with a high #itched '!ice. The
rec!rding when she screamed in C!urt wi"" be #"a$ed at the #resentati!n
! argument here!.
352. >rs >!tshwane a"s! imitated in C!urt what she meant b$ cr$ing !ut "!ud
(&ec!rd 22810 "ines 3 and 80 D!" 21,. This c"i# wi"" a"s! be #"a$ed in
C!urt. It resemb"ed screaming in a high #itched '!ice.
3.-. >r Nh"engethwa e9#"ained that b$ using the w!rd crying out loud he
Page 112
did n!t mean t! describe cr$ing as in wee#ing. @e said it was rather a
#ers!n who was very desperate for help (&ec!rd 22-20 "ines 2-C280
&ec!rd 221-0 "ines 1C80 D!" 21,.
3.1. <hen >r Ne" #ut it t! >r Nh"engethwa that he never heard anybody
scream0 >r Nh"engethwa e9#"ained that in his "anguage the$ use
dierent w!rds. :$ reerring t! cr$ing in the c!nte9t ! what he had
heard0 he did n!t reer t! wee#ing but t! s!me!ne wh! was des#erate
!r he"#.
3.2. >rs 'an der >erwe th!ught it was a w!man cr$ing !ut "!ud0 unti" her
husband t!"d her it was the Accused.
3.3. The cr$ing was a"s! reerred t! b$ >rs >a%hwanaFi0 wh! was em#"!$ed
b$ the Sti##s. It m!st certain"$ cann!t be suggested that it was at a
dierent time as the screaming heard b$ *r and >rs Sti##. I s!0 !ne
w!u"d ha'e e9#ected *r and >rs Sti## t! ha'e said that ater the
screaming st!##ed0 the$ heard a man cr$ing.
3.3. >rs Sti##7s e'idence #ertaining t! >s >%hwanaFi0 wh! was em#"!$ed
b$ her0 is a"s! ! re"e'ance:
3.3.1 >rs Sti## testiied that the !""!wing m!rning0 when she w!%e
u#0 she saw >s >%hwanaFi wh! t!"d her that she had heard
screaming and that she had initia""$ th!ught that it was a bab$0
but when she went !utside t! "isten m!re careu""$ she
determined that it was a w!man (&ec!rd 111-0 "ines 3C20 D!" 13,.
This was n!t what >s >%hwanaFi said in her statement made t!
Page 12-
the In'estigating Oicer.
3.3.2 In cr!ssCe9aminati!n it was #ut t! >rs Sti## that >s
>%hwanaFi7s statement read as !""!ws: " $ust fell asleep when "
was woken up by crying. " first thought it was the baby next door.
" listened and then " realised that it was a woman that was
crying. " was still listening to the crying, trying to find out where it
was coming from when " heard boom, boom, boom (&ec!rd
11530 "ines 12C28 and 11580 "ines 1C80 D!" 13,. It was #ut t! >rs
Sti## that thr!ugh!ut >s >%hwanaFi7s statement she reerred t!
cr$ing and >rs Sti##7s !n"$ answer t! this was that she did n!t
hear cr$ing but that she had heard screaming. She did n!t0
h!we'er0 dis#ute the statement and c!u"d n!t re#eat her
#re'i!us e'idence that >s >%hwanaFi had t!"d her that she had
heard screaming (and n!t cr$ing,.
3.3.3 <hat is signiicant0 is that it was at the same time that >rs Sti##
heard the screaming. It sh!ws that s!me #e!#"e w!u"d reer t! it
as screaming and !thers as cr$ing.
3.8. >r and >rs Nh"engethwa and >rs >!tshwane were c"ear in their
e'idence that the$ did n!t hear a w!man screaming but rather a man
cr$ing !ut "!ud in a high #itched '!ice.
3.1. >r ;in said the !""!wing in his re#!rt (E9hibit III0 #age 30 #aragra#h
8.3, regarding the #erce#ti!n ! s!und: as the act of listening involves a
process of referencing to information available to the specific listeners,
Page 121
the actual perception of sound through the listening process may vary
from one person to another, as each person may have different basis of
information references, due to factors such as individual cultural
background, languages spoken and upbringing. (Em#hasis added,
3.5. The ab!'e sh!ws that witnesses inter#reted the same screaming t! be
that ! a ema"e and a ma"e in a high #itch. The '!ice ! the Accused
#itched when he was an9i!us. It is in that sense that the Accused
screamed "i%e a w!man0 as his screaming was inter#reted t! be the
screaming ! a w!man.
3... *r Sti##0 in his e'idence0 was n!t c!nident en!ugh t! sa$ that it was in
act a w!man screaming. @e said that the screams s!unded ema"e t!
him (&ec!rd 3-20 "ines 23C230 3350 "ines 23C230 D!" 3,. It was #ut t! him
that0 who was screaming was Gr 9istorius. ;ou can say it sounded to
you like a woman. @e c!nceded that this was c!rrect (&ec!rd 3.10 "ines
2C30 D!" 8,.
3.2. *r Sti## did n!t describe the screams in either ! his aida'its as
an$thing !ther than a w!man $e""ing4screaming. In his e'idence #ri!r t!
the "unch adA!urnment he ga'e n! descri#ti!n ! the screams.
32-. Ater he returned r!m the "unch adA!urnment0 >r Ne"7s irst Buesti!n t!
*r Sti## was t! gi'e a descri#ti!n ! the screams. @e then described the
screams as !""!ws (&ec!rd 3230 "ines 18C28 and 3280 "ines 1C20 D!" 3,:
32-.1 'er$ "!ud?
Page 122
32-.2 she s!unded e9treme"$ earu"?
32-.3 the$ were the t$#e ! screams $!u w!u"d hear i s!me!ne was in
ear ! his !r her "ie?
32-.3 the$ were re#eated screams0 three !r !ur times?
32-.8 she s!unded in severe motion anguish scared, almost scared
out of her mind.
321. It is un%n!wn what m!ti'ated him during the "unch adA!urnment t! be
ab"e t! discern between the em!ti!ns c!ntained in the screams.
322. >rs Sti## c!nceded that it was c!rrect when it was #ut t! her that the
screaming came r!m what she assumed t! ha'e been a w!man
(&ec!rd 11380 "ines 23C280 D!" 13,. <hen as%ed whether she was a
hundred #ercent certain she testiied that0 in my PherQ recollection she
was abs!"ute"$ !ne hundred #ercent c!n'inced that it was a ema"e and
that in her mind she was abs!"ute"$ sure that it was a ema"e (&ec!rd
11310 "ines 1C80 D!" 13,. The act that >rs Sti## answered with the
w!rds0 in my recollection indicates uncertaint$.
323. >rs Sti##0 in her e'idence said that it s!unded as i the screaming was
c!ming c"!ser. She said t! her husband is there someone not coming
down the street screamingM @er husband t!"d her that there was a man
m!'ing in the h!use !n the "et hand side s! he th!ught that (it was that
h!use, (&ec!rd 11-30 "ines 22C280 D!" 13,.
Page 123
323. @er statement and e'idence regarding the screaming s!unding c"!ser
sh!rt"$ be!re !3:1)0 is c!nsistent with the 'ersi!n ! the Accused that
he screamed d!wn the #assage and a"s! when he entered the
bathr!!m. This w!u"d acc!unt !r the act that the screaming s!unded
t! her0 as i it was c!ming c"!ser.
328. I it was the *eceased screaming0 she w!u"d ha'e been in the t!i"et at
that stage0 as it was sh!rt"$ be!re the sec!nd s!unds (!3:1),. @er
screaming w!u"d n!t ha'e s!unded as i it was c!ming c"!ser.
321. <e dea" in detai" be"!w with >rs Sti##7s unre"iab"e e'idence. <e submit
that her e'idence is n!t !n"$ unre"iab"e0 but it is a"s! n!t credib"e.
325. >rs Sti##7s e'idence was that she m!'ed t! the bigger ba"c!n$0 when
she heard the terrified screams. This is untrue as it is c"ear r!m *r
Sti##7s e'idence that she was n!t !n the bigger ba"c!n$0 but that he had
met her inside the main bedr!!m when he wa"%ed bac% int! the main
bedr!!m r!m the bigger ba"c!n$ (&ec!rd0 *r Sti##0 3830 "ines 13C210
D!" 3, t! ma%e the ca"" t! securit$.
32.. <hen *r Sti## was as%ed whether his wie went t! the ba"c!n$0 he said
that she was looking through her window and " heard the
screamingLL " remember talking to her because ", you could actually
hear her from her balcony where " was standing. .o she was not with
me initially when " heard the screams. .he was still in the house. +hen "
went inside again, " met her at the door. .he was coming to meet me, "
was coming in. .o she was not standing beside me at the railing looking
Page 123
out. (&ec!rd 3830 "ines 13C210 D!" 3,.
322. *r Sti## then wa"%ed bac% int! the bedr!!m be!re -3:18 as he made a
ca"" t! securit$ (at -3:18:81, and then attem#ted t! ca"" 1-111 (at -3:15,.
Acc!rding t! *r Sti## he met >rs Sti## at the d!!r as she was c!ming
r!m inside the h!use when he m!'ed t! the main bedr!!m t! ma%e the
ca"" (&ec!rd 383,.
3--. This means that her ha'ing heard the terriied screams when she was !n
the bigger ba"c!n$ must be sus#ect as she was n!t where she
#retended t! ha'e been.
3-1. The re"iabi"it$ ! her being ab"e t! discern the screams bec!mes m!re
c!m#r!mised0 i regard is had t! her e'idence that ater the sec!nd
s!unds (the three m!re bangs,0 her husband sh!uted at her t! get awa$
r!m the wind!ws0 and then the screaming st!##ed. (&ec!rd 113-0 "ines
15C2-0 D!" 13, This cann!t be as the *eceased was ata""$ w!unded
and c!u"d n!t ha'e screamed ater the sh!ts.
3-2. As such !ne must be 'er$ cauti!us t! re"$ !n her abi"it$ t! ha'e
discerned the screams.
3-3. A urther diicu"t$ !r the State is that >r E!hns!n0 >rs :urger and *r
and >rs Sti##7s e'idence was e9aggerated and c!ntradict!r$ in materia"
res#ects0 which in itse" creates d!ubt as t! the re"iabi"it$ ! their
e'idence. The d!ubt increases i regard is had t! the g!!d Bua"it$ ! the
e'idence ! >r and >rs Nh"engethwa and >rs >!tshwane0 which
c!ntained n! c!ntradicti!ns.
Page 128
3-3. >s Ta$"!r in e9aminati!n in chie said :
3-3.1 she had heard the Accused screaming a ew times (&ec!rd 3230
"ines 1-80 D!" 8,?
3-3.2 she had seen him being 'er$ an9i!us (&ec!rd 3230 "ines 5C.0 D!"
8,?
3-3.3 and that when he screamed he did n!t s!und "i%e a w!man but
"i%e a man (&ec!rd 3230 "ines 2C30 D!" 8,.
3-8. She had n!t e'er heard him screaming when he was an9i!us0 and her
e'idence is restricted t! him sh!uting at her and that it s!unded "i%e a
man. (&ec!rd 3230 "ines 2C110 D!" 8,.
3-1. She said she had heard him screaming !r sh!uting at her sister0 her best
riend and an!ther riend ! theirs (&ec!rd 3210 "ines 12C110 D!" 8,.
3-5. The a""eged sh!uting at her !r her sister !r riends was n!t an a""eged
incident where he screamed because he was rea""$ an9i!us.
3-.. In cr!ssCe9aminati!n she c!nceded that she had heard him screaming in
situati!ns where he had #ercei'ed his "ie t! be threatened. (&ec!rd
3--0 "ines 1C5,
3-2. This is c!ntradict!r$ t! her e'idence in chie.
31-. @er e'idence did n!t c!ntribute t! assist the State that his '!ice w!u"d
ha'e s!unded "i%e a man when he screamed that night.
Page 121
311. <e anne9 the detai"ed ana"$sis ! the e'idence ! the State witnesses
re"e'ant t! the screaming heret! mar%ed as Anne9ure )C+ : )Screaming+0
!r ease ! reading and reerence. Anne9ure )C+ e9#!ses the
unre"iabi"it$ and in s!me instances the untruthu" e'idence ! State
witnesses in regard t! the screaming and as#ect re"e'ant theret!.
RELATIONSHIP BET%EEN THE ACCUSED AND THE DECEASED
312. The State tendered in e'idence e"ectr!nic c!mmunicati!ns between the
Accused and the *eceased (E9hibit )***+,.
313. Ca#tain >!""er0 the #!"ice !icia" res#!nsib"e !r e9tracting the e"ectr!nic
c!mmunicati!ns0 !und three !ut ! 15-2 e"ectr!nic c!mmunicati!ns
sh!wing s!me unha##iness !n the side ! the *eceased (&ec!rd 12320
"ines 1C50 D!" 18,. >!""er agreed that m!re than 2-M ! the e"ectr!nic
c!mmunicati!ns were ! a "!'ing nature between the Accused and the
*eceased. (&ec!rd 12130 0 "ines 12C220 D!" 13,
313. The e"ectr!nic c!mmunicati!ns in E9hibit )***+0 sh!wing a "!'ing
re"ati!nshi#0 started at 2 Eanuar$ 2-13 u# t! 18:31 !n 13 /ebruar$ 2-13.
In act0 !n 13 /ebruar$ 2-13 at 13:1-:31 the *eceased inter alia (in the
e"ectr!nic c!mmunicati!n, said ;ou are an amaDing person with so
many blessings ....
318. N!twithstanding0 the State s!ught t! re"$ !n the 3 (!ut ! 15--,
e"ectr!nic c!mmunicati!ns t! seeming"$ Austi$ a c!ntenti!n b$ the State:
318.1 that the re"ati!nshi# was a"" ab!ut the Accused? and
Page 125
318.2 that the *eceased was scared ! the Accused.
311. There are !ur diicu"ties with the State7s a##r!ach:
311.1 The State see%s t! read the three messages in is!"ati!n.
@!we'er0 i the$ are read in c!nte9t with a"" the !ther messages0
the three messages are t$#ica" between #e!#"e in a re"ati!nshi#0
es#ecia""$ th!se in a $!ung re"ati!nshi#.
311.2 The unha##$ incidents0 which !rmed the basis ! the tree
messages0 were Buic%"$ res!"'ed between them.
311.3 There is n! ne9us between the messages and the death ! the
*eceased.
311.3 In the absence ! a ne9us0 the messages c!nstitute inadmissib"e
character e'idence. <e dea" with the "ega" #!siti!n re"e'ant t!
character e'idence in an anne9ure mar%ed as A116I046 &D' :
CB?4?>264 E7<561>6.
315. The irst e"ectr!nic c!mmunicati!n reerred t! b$ the State0 r!m the
*eceased t! the Accused0 was !n 12 Eanuar$ 2-13. She reerred t!
rabbit things in his h!use and that : L " wasn!t a stripper or a ho L "
certainly have never been prude and "!ve had fun, but all innocent and
without harmful repercussions. (E9hibit KK10 &ec!rd0 >!""er0 12-5 "ines
2-C28 and 12-. "ines 1C50 D!" 13,.
31.. The gist ! it was that the Accused had been gi'en a car'ing ! a rabbit.
Page 12.
The Accused !ten b!ught them as gits !r riends. <ith reerence t!
the #art where the *eceased said she was n!t a stri##er !r a h!0 the
*eceased had c!me bac% r!m an !'erseas tri# and t!"d the Accused
ab!ut sm!%ing weed0 which e'ent ga'e rise t! unha##iness.
312. The unha##iness re"ected in the irst message is t!ta""$ irre"e'ant t!
#r!'ing the Accused7s gui"t !n murder. It is signiicant that e'en th!ugh
there was s!me unha##iness between the *eceased and the Accused0 it
was res!"'ed within a 'er$ sh!rt #eri!d ! time. At 18:82:23 !n the same
da$0 a##r!9imate"$ 2- sec!nds ater the *eceased had sent the
message t! the Accused ab!ut ne'er ha'ing been a #rude0 she t!"d him
that she was watching the cerem!n$ and as%ed him h!w ar he was r!m
entering (E9hibit KK1,. This was a reerence t! the !#ening cerem!n$ !
the C!nederati!ns Cu# where the Accused was #art ! the cerem!n$
and the *eceased was watching the cerem!n$ (&ec!rd0 Accused0 13-3
"ines 22C28 and 13-8 "ine 10 D!" 15,. In a !""!wCu# message (ab!ut 8
minutes "ater,0 the Accused in'ited the *eceased t! his riend7s 8-
th
birthda$.
32-. The sec!nd e"ectr!nic c!mmunicati!n was r!m the *eceased t! the
Accused !n 25 Eanuar$ 2-13 at 11:15:33 (&ec!rd0 >!""er0 12-. "ines 11C
28? 12-2 "ines 1C28 and 121- "ines 1C110 D!" 13,. It re"ates t! the e'ents
at an engagement #art$.
321. The gist ! the sec!nd c!mmunicati!n was that the Accused and the
*eceased had had a disagreement at a riend7s engagement #art$
because the *eceased was ta"%ing t! s!me!ne that the Accused didn7t
Page 122
%n!w and this made the Accused ee" neg"ected and a bit insecure !r
Aea"!us (&ec!rd0 Accused0 13-.0 "ines 1C150 D!". 15,. As a resu"t0 the
*eceased was u#set.
322. <hi"st the *eceased had stated in the message that she was scared !
the Accused s!metimes and h!w he sna##ed at her0 this needs t! be
seen within the c!nte9t ! the entire message and n!t that the *eceased
was scared ! the Accused in a #h$sica" sense.
323. The Accused a#!"!giFed t! the *eceased and t!"d the *eceased that he
wanted t! res!"'e it. @e e9#"ained what had u#set him (see &ec!rd0
Accused0 13-2 "ines .C28 and 131- "ines 1C110 D!" 15 !r this message,.
The unha##iness was res!"'ed !n the same da$ at ab!ut 1.:33:2.. The
*eceased sent the Accused a message Nxx which means three %isses.
There are man$ caring !""!wCu# messages between the *eceased and
the Accused.
323. The third e"ectr!nic message was sent r!m the *eceased t! the
Accused !n 5 /ebruar$ 2-13 at --:-2:11. The gist ! this message was
that the Accused and the *eceased had had a disagreement at an
e'ent. <hen the$ were "ea'ing the Accused as%ed the *eceased n!t t!
st!# !n the wa$ !ut as he tried t! a'!id ha'ing t! st!# !r #h!t!s as he
wanted t! train ear"$ the ne9t m!rning. The *eceased st!##ed t! ta"% t!
a riend !n the wa$ !ut which caused a de"a$ ! ab!ut 38 minutes. This
resu"ted in an argument between the *eceased and the Accused
aterwards (&ec!rd0 Accused0 1318 "ines 1C180 D!" "15,.
Page 13-
328. The argument was res!"'ed te"e#h!nica""$ when the Accused #h!ned
the *eceased sh!rt"$ thereater (&ec!rd 13180 "ines 11C280 D!" 15,. @e
a#!"!gised and the "!'ing re"ati!nshi# c!ntinued. (&ec!rd 13180 "ines
12C280 D!" 15,.
321. The "ast ! the s!Cca""ed unha##$ e"ectr!nic c!mmunicati!ns was !n 5
/ebruar$ 2-13. Since then a"" the c!mmunicati!ns c!ntinued t! sh!w a
"!'ing and hea"th$ re"ati!nshi#.
325. It is c"ear that a m!ti'e t! cause the death ! the *eceased is absent
r!m the three messages.
32.. <e submit that the State %new that the three messages c!u"d ne'er
c!ntribute t! an$ such a""eged m!ti'e0 and that the State7s rea" intenti!n
was t! tr$ and #!rtra$ the Accused as being se"ish and mani#u"ati'e.
322. The Accused testiied that he was n!t in the habit ! sending te9t
messages0 and that this w!u"d acc!unt !r the act that he did n!t
engage in arguments with !thers (m!re #articu"ar"$ the *eceased,0 b$
means ! te9t messages. &ather0 he indicated that he ch!se t! discuss
matters c!ncerning diicu"ties in their re"ati!nshi# with the *eceased in
#ers!n0 as !##!sed t! sending her messages b$ means ! S>S
(&ec!rd0 #age 18130 "ines 15C12,. A #erusa" ! E9hibit KK. (the
Accused7s ce""u"ar #h!ne "!g, c!nirms the Accused7s 'ersi!n. The ce""
#h!ne ca"" acti'it$ in KK. is m!re #r!"iic than the rec!rda" ! S>S te9t
messages.
33-. *uring cr!ssCe9aminati!n0 >r Ne" #ut t! the Accused that the Accused
Page 131
ne'er wr!te "!ng messages t! the *eceased in which he w!u"d ha'e
t!"d her h!w he e"t ab!ut her. Thus0 the Accused7s 'ersi!n that he
rather s#!%e !n the #h!ne as !##!sed t! ha'ing sent te9t messages t!
the *eceased0 e9#"ains awa$ what >r Ne" attem#ts t! #!rtra$ as ha'ing
been an indierent a##r!ach ad!#ted b$ the Accused t!wards the
*eceased (&ec!rd0 #age 18130 "ines 8C12,.
331. A#art r!m the act that the a""eged character traits are irre"e'ant0 the
acts reerred t! be"!w sh!w that the Accused is n!t se"ish and
mani#u"ati'e.
332. Pr!ess!r Sch!"tF0 in his re#!rt (E9hibit JJJ, is ! the 'iew that : his
style of conflict resolution is to talk through the situation or remove
himself from the situation. ?e also has the ability to selfBreflect
afterwards, mostly leading to feelings of guilt and then apology from him
(E9hibit JJJ, #age 220 #aragra#h 8.30 "ines 31C32,.
333. Pr!ess!r Sch!"tF is ! the 'iew that the Accused was n!t the rageCt$#e
%i""er !r a #ers!n with a hist!r$ ! abn!rma" aggressi!n !r e9#"!si'e
'i!"ence (#age 220 #ara 8.3,.
333. Pr!ess!r Sch!"tF a"s! did #s$ch!metric testing and !und:
333.1 that the Accused did n!t suer r!m c"inica""$ signiicant
aggressi!n0 anger !r h!sti"it$ (#aragra#h 3.2.10 #age 18,?
333.2 that the Accused had n!t attem#ted t! ma"inger (#aragra#h
3.2..0 #age 18,.
Page 132
338. Pr!ess!r Sch!"tF !und that:
338.1 The Accused was instantly taken with 4the <eceased7 and the
relationship developed well (#age 2.0 "ines 38C31,.
338.2 *ierences !ccurred (between them, but were dea"t with b$
ta"%ing them thr!ugh (#age 2.0 "ines 31C35,. The ab!'e was
c!rr!b!rated in the e"ectr!nic c!mmunicati!ns0 where we
dem!nstrated that s!!n ater the unha##iness0 such
unha##iness was res!"'ed and the "!'ing re"ati!nshi# c!ntinued.
338.3 There is evidence to indicate that Gr 9istorius was genuine with
his feelings towards Gs .teenkamp and that they had a normal
loving relationship. (#aragra#h 8.10 #age 3-0 3-C31,
338.3 ,lthough their relationship was still young there were no signs
of abuse or coercion like often found in these kinds of
relationships (#aragra#h 810 "ines 38C35,
338.8 Their re"ati!nshi# sh!wed n!ne ! the characteristics ass!ciated
with an abusi'e re"ati!nshi# (#age 220 "ines 3C8,.
338.1 #o evidence could be found to indicate that Gr 9istorius has a
history of abnormal aggression or explosive violence. ,bnormal
aggression and violence was never incorporated into his
personality, as borne out by psychometric testing and collateral
information. ?e does not display the personality characteristics
of #arcissism andOor 9sychopathy that are mostly associated
Page 133
with men in abusive relationships and have been linked to rageB
type murders in intimate relationships. (#aragra#h 8.30 "ines 31C
35,
338.5 ?is style of conflict resolution is to talk through the situation or
remove himself from the situation.
331. The State7s c!ntenti!ns were a"s! reuted b$ E9hibit 3.
335. E9hibit 3 is the CCTD !!tage ! the Accused and the *eceased in an
Engen 6arage Sh!# which was eBui##ed with a CCTD camera !r
securit$ #ur#!ses. The Accused and *eceased were unaware ! the
CCTD camera rec!rding their m!'ements in the Engen Sh!#. The$
s#!ntane!us"$ %issed and hugged in the sh!#. This e'ent trans#ired !n
3 /ebruar$ 2-13. (&ec!rd 12810 "ines 1-C28? 12850 "ines 1C1-0 D!" 18,.
33.. The C!urt a""!wed E9hibit 3 #r!'isi!na""$. <e dea" with the admissibi"it$
! E9hibit 3 in an anne9ure mar%ed as ,nnexure < ( =xhibit 6.
332. <e ha'e sh!wn in A116I046 E : EIB<C<2 3 that:
332.1 i the 'ide! is re"e'ant0 it sh!u"d be admitted?
332.2 i a witness rec!gnises a scene !r a #ers!n in the 'ide!0 it
sh!u"d be admitted0 e'en i he did n!t ta%e the 'ide! !r was n!t
#resent when it was ta%en?
332.3 it d!es n!t matter i the 'ide! is n!t the !rigina" 'ide!.
Page 133
33-. >!re!'er Ca#tain >!""er was e9#erienced in the #ur#!se ! CCTD
!!tage. @e had n! reas!n t! raise an$ c!ncern :
33-.1 that the !!tage was mani#u"ated !r deecti'e?
33-.2 that the !!tage was n!t that ! the Accused and the *eceased
in the Engen Sh!# !n 3 /ebruar$ 2-13?
33-.3 that the !!tage did n!t sh!w the Accused and the *eceased
acting s#!ntane!us"$ in a "!'ing re"ati!nshi# which #r!'es
re"e'ant t! the case.
331. The re"e'ance ! the !!tage was (c!rrect"$ s!, ne'er in issue. The
!!tage is high"$ re"e'ant0 #articu"ar"$ in 'iew ! the State7s c!ntenti!ns
in cr!ssCe9amining the Accused that the re"ati!nshi# was a"" ab!ut the
Accused.
332. <e res#ectu""$ submit that E9hibit 3 sh!u"d be admitted as e'idence
and its #r!bati'e 'a"ue be c!nsidered within the c!nte9t ! a"" the !ther
e'idence.
333. The State7s c!ntenti!n is a"s! reuted b$ the Da"entines card r!m the
*eceased t! the Accused (E9hibit @@@, stating : " think today is a good
day to tell you that ... " love you. (&ec!rd 12350 "ines 3C130 D!" 122,.
333. The State did n!t ca"" an$ witness0 !ther than >s Ta$"!r0 wh!se e'idence
is irre"e'ant in regard t! the re"ati!nshi# between the Accused and the
*eceased0 n!twithstanding its &e#"$ t! the /urther Particu"ars (Ad
Page 138
#aragra#h 3.3, where the State #ur#!rted"$ en'isaged t! re"$ !n the
e'idence ! Nim and 6ina >$ers and >iss 6re$'enstein in re"ati!n t!
the c!nduct ! the *eceased during the re"ati!nshi#. @!we'er the State
did n!t ca"" 6ina and Nim >$ers !r >iss 6re$'enstein. The State7s
ai"ure t! ca"" >iss 6re$'enstein is signiicant.
338. The State handed the rec!rd ! the bai" a##"icati!n in as E9hibit *. The
aida'it ! >iss 6re$'enstein !rms #art ! the bai" a##"icati!n and was
read int! the rec!rd !n beha" ! the Accused. (E9hibit *0 #ages 55C.-,.
331. The State intr!duced the rec!rd ! the bai" #r!ceedings as a true
reflection of the proceedings and the evidence led (&ec!rd 150 "ines 21C
280 D!" 1,. As such0 >s 6re$'enstein7s aida'it was intr!duced b$ the
State 'ia the bai" a##"icati!n and made re"e'ant in the State7s &e#"$ t!
the /urther Particu"ars (Ad #aragra#h 3.3 there!,.
335. It is true that her aida'it c!nstitutes hearsa$ e'idence. <e submit that
the @!n!urab"e C!urt sh!u"d e9ercise its discreti!n t! a""!w the aida'it
in the interest ! Austice as is en'isaged in Secti!n 3(1,(c, ! the ;aw !
E'idence Amendment Act 38 ! 1228. <e dea" in an anne9ure heret!
mar%ed as A116I046 F : &H6?4@?=' with Secti!n 3(1,(c,.
33.. <e submit that it is in the interests ! Austice t! admit int! e'idence the
aida'it b$ >s 6re$'enstein in the bai" a##"icati!n:
33..1 The #r!bati'e 'a"ue there! is a matter !r the discreti!n ! the
C!urt.
Page 131
33..2 The State s!ught t! re"$ !n >s 6re$'enstein in its &e#"$ t! the
/urther Particu"ars0 in re"ati!n t! the c!nduct ! the *eceased.
33..3 The State is b!und b$ its /urther Particu"ars.
33..3 The State intr!duced the bai" a##"icati!n0 with!ut e9c"uding >s
6re$'enstein7s aida'it.
33..8 The state a""eges the Accused was mani#u"ati'e and se"ish in
the re"ati!nshi#.
33..1 >s 6re$'enstein7s aida'it is re"e'ant t! the State7s a""egati!n
ab!ut the re"ati!nshi# between the Accused and the *eceased.
332. In her aida'it0 she inter alia stated as the best riend ! the *eceased
>eeva confided in me that even though she and Cscar had not been
together for very long she really loved Cscar and she could see a future
with him. .he told me that if Cscar asked her to marry him she would
probably say yes.
38-. The acts reerred t! ab!'e !'erwhe"ming"$ sh!w that the !ur e"ectr!nic
c!mmunicati!ns0 sh!wing that the *eceased was unha##$ with the
Accused ab!ut certain incidents0 c!u"d n!t be e"e'ated t! an$ re"e'ance
!r m!ti'e t! %i"" the *eceased0 but are incidents t! be e9#ected in a
$!ung re"ati!nshi#.
381. Our submissi!n ab!'e bec!mes m!re c!gent when regard is had t! the
re#!rt ! Pr!ess!r E 6 Sch!"tF0 as #art ! the Secti!n 5. reerra" !r
Page 135
!bser'ati!n (E9hibit JJJ,.
382. The re#!rt (E9hibit JJJ, is e'idence be!re the C!urt (&ec!rd 253-0
"ines 2C280 25380 "ines 2C18,. The #arties e"ected n!t t! cr!ssCe9amine
Pr!ess!r Sch!"tF.
383. >s 'an Scha"%w$% is a Bua"iied and e9#erienced s!cia" w!r%er and
#r!bati!n !icer. At the bai" a##"icati!n the C!urt >anager as%ed her t!
acc!m#an$ the Accused during the entire durati!n ! the bai" a##"icati!n
(&ec!rd 22230 "ines 1C3,.
383. >s 'an Scha"%w$% came !rward as a witness as she was u#set as t!
h!w the Accused was #!rtra$ed in the #rint media and wanted t! share
with the C!urt her !bser'ati!ns ! the Accused at the bai" hearing. She
read in the media that he was n!t sincere ab!ut his ee"ings and that he
cried s! as t! mani#u"ate the situati!n (&ec!rd 231-0 "ines 3C80 D!" 25,.
It must be b!rne in mind that the State0 in cr!ssCe9aminati!n0 tried t!
#!rtra$ the Accused as a se"ish #ers!n in the re"ati!nshi# and that it
was a"wa$s !n"$ ab!ut the Accused and n!t the *eceased.
388. C!ntrar$ t! the #ur#!rted #!rtra$a" b$ the State0 >s 'an Scha"%w$%
testiied that in !bser'ing the Accused during the entire #eri!d ! the bai"
a##"icati!n:
388.1 he was a man that was heartbroken about the loss. ?e cried,
he was in mourning, he suffered emotionally. ?e was very very
sorry about the loss, especially for her parents. The suffering
they are going through. That was the theme through the whole
Page 13.
period that " saw him ... it was mainly about >eeva, the loss. ?e
loved her ... (&ec!rd 22210 "ines 5C18? &ec!rd 23180 "ines 18C
2-0 D!" 25,?
388.2 ?e cried eighty percent of the time ... ?e talked to me about
what they planned for the future. ?is future with her, the loss
that he never is going to see her again. ?er family, her mother
and father, what they are going through. That is what " saw, "
saw a heartbroken man that suffering emotionally. (&ec!rd
22220 "ines 18C120 D!" 25,?
388.3 ?e said to me he was sorry about what happened. The
incident. (&ec!rd 23120 "ines 1C10 D!" 25,?
388.3 she said his em!ti!ns were ne'er ab!ut him0 what was g!ing t!
ha##en t! him and whether he w!u"d get bai" (&ec!rd 23130
"ines 18C2-0 D!" 25,.
381. The e'idence ! >r Peet 'an K$" was a"s! that he regarded the
re"ati!nshi# as a "!'ing and caring re"ati!nshi# and that the Accused was
seri!us in his re"ati!nshi# with the *eceased (&ec!rd 212.0 "ines 1C30
D!" 33,. The Accused #urchased a h!use in E!hannesburg t! be c"!ser
t! the *eceased. @e made tra'e" arrangements !r the *eceased t! A!in
the Accused !n his !'erseas tri#s.
385. <hat is c"ear r!m the ab!'e0 e'en "ea'ing aside the Accused7s
e'idence0 which is c!nsistent with the ab!'e0 is that:
Page 132
385.1 The !'erwhe"ming inerence r!m the e"ectr!nic c!mmunicati!ns
between the Accused and *eceased is that it was a "!'ing
re"ati!nshi# with n! signs !r indicati!n !r suggesti!n that the
Accused w!u"d want t! %i"" the *eceased?
385.2 Ater the incident the Accused was !'erwhe"med b$ em!ti!ns !r
the *eceased and her #arents.
385.3 The Accused was genuine in his re"ati!nshi# with the *eceased.
385.3 The Accused d!es n!t ha'e #ers!na"it$ traits indicati'e !
narcissism0 e9#"!si'e 'i!"ence !r abn!rma" aggressi!n which
c!u"d be ass!ciated with an abusi'e re"ati!nshi# !r rageCt$#e
murders in intimate re"ati!nshi#s.
385.8 It was n!t an abusi'e re"ati!nshi# !r !ne where it was a"" ab!ut
the Accused.
38.. The acts ab!'e c!n'incing"$ reute the State7s a""egati!n ! an$ rageC
t$#e beha'i!ur !""!wing an a""eged argument.
COLONEL VAN RENSBURG
382. The State re"ied !n C!"!ne" 'an &ensburg t! #r!'e that the scene in the
bathr!!m and bedr!!m was0 as it had been !bser'ed b$ him0 i.e. t!
reute an$ suggesti!n that the scene was changed in an$ manner.
31-. @e arri'ed !n the scene at ab!ut -3:88. In his e'idence he #retended
Page 13-
that access c!ntr!" t! the irst "!!r was restricted. @e irst went u#stairs
with <4O @i"t!n :!tha. Thereater the$ acc!m#anied the #h!t!gra#her
<4O 'an Staden u#stairs. <4O 'an Staden was a"!ne when he t!!% the
#h!t!gra#hs between ab!ut -1:-- and -5:-- !n 13 /ebruar$ 2-130 but
!r a time0 when he and <4O @i"t!n :!tha A!ined <4O 'an Staden. On"$
then did he a""!w !ther #!"ice !icia"s t! g! u#stairs.
311. <e wi"" dem!nstrate be"!w that C!"!ne" 'an &ensburg7s 'ersi!n as
stated ab!'e is0 t! his %n!w"edge and that ! the State0 inc!rrect. T! his
%n!w"edge and that ! the State0 !ther #!"ice !icia"s were a"s! !n the
irst "!!r ear"$ that m!rning be!re the #h!t!gra#her arri'ed !n the
scene.
312. <e dea" with C!"!ne" 'an &ensburg7s e'idence in detai" in an anne9ure
mar%ed A116I046 G : &C/8/168 7?1 R61@C04D ?15 %/O V?1 S2?561'.
<e summarise the gist ! his e'idence be"!w.
313. C!"!ne" 'an &ensburg was n!t truthu" when he said that the !ther #!"ice
!icia"s were !n"$ gi'en access t! the irst "!!r ater the #h!t!gra#her
had ta%en #h!t!s between ab!ut -1:-- and -5:--.
313. It was n!t an inn!cent mista%e. @e de"iberate"$ de'iated r!m his
aida'it in this regard t! attem#t t! c!ncea" the #resence ! !ther #!"ice
!icia"s !n the irst "!!r.
318. C!"!ne" 'an &ensburg was reerred t! aida'its ! #!"ice !icia"s0 wh!
were at the scene and wh! were u#stairs be!re -1:--. These #!"ice
!icia"s were:
Page 131
318.1 Sergeant Sebethe?
318.2 Ca#tain >a"u"e%e?
318.3 *etecti'eCSergeant Chau%e?
318.3 *etecti'e >ashishi.
311. The State ai"ed t! ca"" the ab!'e witnesses as e'ident"$0 the$ w!u"d
ha'e reuted C!"!ne" 'an &ensburg7s e'idence.
315. <4O 'an Staden0 the #h!t!gra#her at irst su##!rted the e'idence !
C!"!ne" 'an &ensburg0 that the !ther #!"ice !icia"s had !n"$ accessed
the irst "!!r ater he had ta%en #h!t!s between ab!ut -1:-- and -5:--.
31.. @!we'er0 <4O 'an Staden had t! c!ncede that the !ther #!"ice !icia"s
were indeed a"s! !n the irst "!!r when he was there. @e admitted that
inter alia the !""!wing !icia"s were #resent:
31..1 C!"!ne" >!tha?
31..2 C!nstab"e >siFa?
31..3 C!"!ne" >a%ha!"a?
31..3 <4O Shubane.
312. The State a"s! ai"ed t! ca"" these witnesses.
35-. A diicu"t$ with C!"!ne" 'an &ensburg7s (and <4O 'an Staden7s,
e'idence is :
Page 132
35-.1 that it c!ntains materia" c!ntradicti!ns?
35-.2 his !bser'ati!ns disc"!sed in his irst aida'it were dierent r!m
his !bser'ati!ns gi'en in e9aminati!n in chie0 in cr!ssC
e9aminati!n and reCe9aminati!n?
35-.3 in e'idence in chie he c!nirmed !bser'ati!ns as de#icted !n
#h!t!s sh!wn t! him0 !n"$ t! c!ncede in cr!ssCe9aminati!n that
he did n!t !cus !n e'er$thing?
35-.3 he destr!$ed his n!tes made !n the da$.
351. The !bser'ati!ns are #articu"ar"$ re"e'ant t!:
351.1 the #!siti!n ! the ans?
351.2 the #!siti!n ! the du'et?
351.3 the #!siti!n ! the denim tr!users?
351.3 the #!siti!n ! the e9tensi!n c!rd.
TB6 A?1@ ?15 2B6 6I261@</1 >/45
352. Acc!rding t! C!"!ne" 'an &ensburg7s irst aida'it he did n!t see the
ans when he irst went u#stairs.
353. Acc!rding t! his reCe9aminati!n he saw !ne ! the ans0 but he did n!t
%n!w i the an was !n !r !.
353. A"th!ugh he said that he did n!t t!uch an$thing that m!rning0 Ph!t!
)OO+ (E9hibit 2 being the e"ectr!nic 'ersi!n ! Ph!t! )OO+, c"ear"$ sh!ws
Page 133
his hand !n a #"ug !n the mu"tiC#"ug ! the e9tensi!n c!rd. @is
e9#"anati!n was that he was "!!%ing at the "in%age !r cab"e t! the an.
358. It is un%n!wn which #"ugs (! the e9tensi!n c!rd, he #"ugged in !r
un#"ugged.
351. Acc!rding t! Ph!t! )OO+0 his ce"" #h!ne had a c!rd !n (seeming"$ t!
charge,0 it is un%n!wn where that c!rd was #"ugged in.
355. @e did n!t %n!w what <4O :!tha did in the main bedr!!m. This is
c!nsistent with the disa##earance ! tw! ! the wrist watches ! the
Accused. This is a"s! c!nsistent with C!"!ne" 'an &ensburg7s e'idence
" did not control the seiDure of the forensic guys. (&ec!rd0 .810 "ines .C
12, (!n 13 /ebruar$ 2-13,. There was a"s! n! in'ent!r$ !r the 13
th
/ebruar$ 2-13.
35.. <e d! n!t %n!w i <4O :!tha un#"ugged the ans !r turned them ! as
there was at that time n!thing t! indicate t! <4O :!tha that he sh!u"d
n!t. @e ma$ ha'e d!ne s! inn!cent"$ when he was in the bedr!!m and
saw that the ans were !n.
352. <e d! n!t %n!w what the !ther !icia"s did in the main bedr!!m as
C!"!ne" 'an &ensburg endea'!ured t! c!ncea" their #resence0
n!twithstanding the e9istence ! their aida'its and the c!ncessi!ns b$
<4O 'an Staden.
3.-. The e9tensi!n c!rd disa##eared !n 13 /ebruar$ 2-13 at a time that the
scene was under the cust!d$ and c!ntr!" ! the #!"ice.
Page 133
3.1. The State handed in a statement b$ C!nstab"e @endri% <i""em E!hannes
"e &!u9 that he used the e9tensi!n c!rd t! i"m in the bathr!!m and
aterwards he "et it at an un%n!wn #"ace in the main bedr!!m.
3.2. The #!"ice 'ide! !n 13 /ebruar$ 2-13 ! the main bedr!!m reutes his
statement that the e9tensi!n c!rd was "et in the main bedr!!m. <e wi""
dea" with as#ect in argument as we are awaiting in!rmati!n r!m the
State in this regard.
3.3. C!"!ne" 'an &ensburg testiied that items were a"s! seiFed !n
13 /ebruar$ 2-13 b$ !ther #!"ice !icia"s. @e did n!t %n!w what the$
seiFed. An in'ent!r$ was !n"$ made !n 18 /ebruar$ 2-13 and n!t ! the
items )seiFed+ !n 13 /ebruar$ 2-13.
3.3. >r Ne" in cr!ssCe9amining the Accused ab!ut the ans #remised his
Buesti!ns !n the assum#ti!n that the e9tensi!n c!rd c!u"d n!t m!'e.
There was n! basis !r the #remises that the e9tensi!n c!rd c!u"d n!t
m!'e. The #remises a"s! bec!me sus#ect with the disa##earance !
the e9tensi!n c!rd under the cust!d$ and c!ntr!" ! the #!"ice.
3.8. <4O 'an Staden arri'ed much "ater (ater <4O :!th and a"" the !ther
!icia"s reerred t! ab!'e,. @e a"s! tried t! sa$ that he was a"!ne
u#stairs when he t!!% the #h!t!s0 !n"$ t! be !rced t! c!ncede that it
was n!t the truth during cr!ssCe9aminati!n.
3.1. There is n! certaint$ that the crime scene was intact b$ the time <4O
'an Staden arri'ed at the scene t! ta%e the #h!t!s.
Page 138
3.5. A"" ! the ab!'e sh!ws that the c!nduct ! the P!"ice "ea'es !ne with n!
c!m!rt !r certaint$ as t! what the #!siti!ns ! the ans were when the
P!"ice arri'ed at the scene.
3... The ab!'e c!ntradicti!ns and uncertainties and Buesti!nab"e c!nduct b$
the #!"ice d!es n!t assist the State in reuting the Accused7s 'ersi!n that
the ans were !n at the time ! the incident.
TB6 50762 ?15 2B6 561<3 24/0@64@
3.2. The same diicu"ties reerred t! ab!'e are re"e'ant t! the #!siti!ning !
the du'et.
32-. The State c!ntended that the *eceased0 in the #r!cess ! her "eeing
r!m the Accused0 hurried"$ "et her denim tr!users !n the "!!r.
Inderstanding #h!t! dece#ti!n0 we are unab"e t! agree that the denim
tr!users was !n t!# ! the du'et.
321. >!re im#!rtant"$0 C!"!ne" 'an &ensburg7s e'idence was n!t that the
denim tr!users were !n t!# ! the du'et0 but next to the du'et.
322. The State c!ntended that the *eceased in her #r!cess ! "eeing r!m
the Accused hurried"$ undressed herse" Buic%"$0 t!!% her Aeans !
Buic%"$ and then "et them !n the "!!r (&ec!rd 12180 "ines 1C110 D!" 22,
323. It d!es n!t ma%e sense that i she wanted t! get awa$ r!m the Accused
as Buic%"$ as #!ssib"e0 that she w!u"d ta%e her denim tr!users ! and
#ut the Accused7s sh!rts !n.
Page 131
323. The #!siti!n ! the denim tr!users is m!re c!nsistent with the Accused7s
'ersi!n that he #ic%ed them u# t! c!'er the ;E* "ight. @e heard the
s!und in the bathr!!m and #r!bab"$ dr!##ed the denim tr!users
(&ec!rd 135-0 "ines 3C1-0 D!" 15,
328. The Accused testiied that acc!rding t! <4O @ :!tha7s aida'it0 the
du'et was !n the bed !n the !ne side when he (:!tha, was there.
(&ec!rd 18310 "ines 1.C210 D!" 1., N!twithstanding0 the State #ersisted
in its ai"ure t! ca"" <4O :!tha.
321. It is submitted that the e'idence ! the State and the Accused in re"ati!n
t! the ans and du'et "ea'e m!re Buesti!ns than it #r!'ides answers0
and it there!re ma%es it "ega""$ im#!ssib"e !r the C!urt t! ma%e an$
decisi'e inding in regard t! the du'et0 ans and the denim tr!users.
325. As regards the e9tensi!n c!rd0 the C!urt a"s! has a diicu"t$ as t! h!w
ar the e9tensi!n c!rd c!u"d reach. This diicu"t$ was created s!"e"$ b$
the State.
THE ACCUSED
TB6 764@</1 /A 2B6 A>>0@65 504<1D 2B6 C?<8 ?::8<>?2</1
32.. On 13 /ebruar$ 2-13 at a##r!9imate"$ 22h--0 the Accused and the
*eceased were in the main bedr!!m ! the Accused7s h!me ater the$
had c!nsumed dinner0 at a##r!9imate"$ 12h1- (E9hibit *0 #age 12,?
322. *uring the ear"$ m!rning h!urs ! 13 /ebruar$ 2-130 the Accused w!%e
Page 135
u#0 whereater he went onto the balcony t! bring the an in0 ha'ing
d!ne s!0 he c"!sed the s"iding d!!rs0 b"inds and curtains. At that #!int in
time0 the Accused was !n his stum#s (E9hibit *0 #age 13,?
8--. @e heard a n!ise emanating r!m the bathr!!m0 which n!ise he
ass!ciated with an intruder ha'ing accessed the bathr!!m (E9hibit *0
#age 13,?
8-1. @e was t!! araid t! switch !n a "ight in the bedr!!m0 and ater he had
said t! the *eceased that she sh!u"d #h!ne the #!"ice0 he a##r!ached
the bathr!!m whi"st screaming w!rds t! the eect that the intruder4s
were t! "ea'e his h!use (E9hibit *0 #age 18,?
8-2. At the entrance t! the bathr!!m0 he !bser'ed that the bathr!!m wind!w
was !#en and thus he be"ie'ed that the intruder4s was4were at that stage
within the c!nines ! the t!i"et0 which is situated within the bathr!!m
(E9hibit *0 #age 18,. It is c!mm!n cause that the bathr!!m wind!w was
!#en?
8-3. @e heard a n!ise emanating r!m the t!i"et and in his 'u"nerab"e state0
be"ie'ing that the intruder4s #!sed a seri!us threat ! harm t! his and the
*eceased7s saet$0 he ired sh!ts at the t!i"et d!!r0 ater which he
sh!uted !r the *eceased t! #h!ne the #!"ice. The Accused7s
'u"nerab"e state0 was e9acerbated b$ his "imited m!bi"it$0 due t! him
being !n his stum#s and n!t ha'ing had the beneit ! the use ! his
#r!sthesis (E9hibit *0 #age 18,?
8-3. SubseBuent t! the discharge ! his irearm0 the Accused returned t! the
Page 13.
main bedr!!m0 in search ! the *eceased. @a'ing n!t !und the
*eceased0 he returned t! the bathr!!m and !und the t!i"et d!!r "!c%ed
(E9hibit *0 #age 11,?
8-8. The Accused returned t! the main bedr!!m0 and ha'ing !#ened the
s"iding d!!r0 he e9ited !nt! the ba"c!n$ and screamed !r he"# (E9hibit
*0 #age 11,?
8-1. @e indicated that he was (at the time ! the sh!!ting incident,0 acute"$
aware ! the #re'a"ence ! 'i!"ent crime being c!mmitted b$ intruders
entering h!mes and that he had in the #ast0 been a 'ictim ! 'i!"ent
crime (E9hibit *0 #age 13,.
8-5. At the tria"0 the Accused testiied that he did n!t inc"ude e'er$ min!r
detai" in the statement uti"ised in su##!rt ! his bai" a##"icati!n (&ec!rd0
#age 182-0 "ines 11C12,. @e a"s! testiied that he wanted t! testi$ at the
bai" a##"icati!n t! te"" the u"" st!r$0 but he was ad'ised n!t t!. (&ec!rd
18150 "ines 1C30 D!" 1.,.
TB6 A>>0@65+@ S6>04<2= C/1>641@ ?15 D<@?C<8<2=:
8-.. The Accused7s saet$ c!ncerns must be c!nsidered in the c!nte9t ! his
'u"nerabi"it$. @is 'u"nerabi"it$ is re"e'ant t! his #h$sica" disabi"it$ and the
s"!w burn eect ! his disabi"it$.
8-2. @e testiied that he d!es n!t ha'e ba"ance whi"st he is #!siti!ned !n his
stum#s (&ec!rd0 #age 13530 "ines 11C1. and #age 13530 "ines 15 and
1.,.
Page 132
81-. This e'idence was ne'er cha""enged b$ the State. &ather0 >s Ta$"!r
c!nirmed that the Accused e9#erienced a "ac% ! ba"ance when n!t
#!siti!ned !n his #r!sthesis (&ec!rd0 #age 31-0 "ines 22C23,.
811. /urtherm!re0 *r Derse"d testiied that whi"st the Accused can wa"% !r
sh!rt distances with!ut h!"ding !nt! s!mething0 he n!nethe"ess reBuires
the use ! his hands and arm m!'ements0 t! ba"ance himse" (&ec!rd0
#age 28280 "ines 5C11,.
812. Pr!ess!r *erman a"s! c!nirmed that0 due t! the medica" #r!b"ems
ass!ciated with the Accused7s "et stum#0 the Accused0 when wa"%ing0
w!u"d e9#erience an imba"ance0 and that this w!u"d ma%e #h$sica"
ba"ance and wa"%ing b$ the Accused diicu"t (&ec!rd0 #age 25130 "ines
23C28 and #age 25180 "ines 1C3,. The State did n!t dis#ute the e'idence
! *r Derse"d0 n!r that ! Pr!ess!r *erman0 in this regard.
813. The Accused c!nirmed that he had a""en 'ictim t! crime r!m a $!ung
age and that he had #ers!na""$ e9#erienced a number ! incidents !
crime (&ec!rd0 #age 13.30 "ines 1C280 &ec!rd #age 13.80 "ines 1C28 and
&ec!rd0 #age 13.10 "ines 1C13,.
813. @e a"s! c!nirmed that he was aware ! crimes being c!mmitted within
the Si"'erw!!ds Estate (&ec!rd0 #age 13.20 "ines 23C28,0 such incidents
ha'ing been re#!rted t! him b$ E!han Stander. Stander (ha'ing been
in'!"'ed with the administrati!n ! the estate, c!nirmed that such
incidents ! crime had ta%en #"ace within the estate and that he had
c!n'e$ed this in!rmati!n t! the Accused (&ec!rd0 #age 218-0 "ines 1C.0
Page 18-
#age 132-0 "ines 11C18 and #age 218-0 "ines 3C280 #age 21820 "ines 5C
1-,.
818. C!"!ne" 'an &ensburg testiied that a securit$ area0 with a securit$ gate
and #atr!""ing guards did n!t #re'ent crime0 inc"uding that ! armed
r!bberies. (&ec!rd .250 "ines 2C1.,
811. The Accused a"s! testiied that he was threatened and intimidated b$
!ne >ar% :atche"!r0 which incident had been re#!rted t! the @aw%s.
(&ec!rd 152. "ines 12C23,. @e a"s! stated that :atche"!r had been #aid
a sum ! m!ne$ b$ !ne Juint!n 'an den :urgh0 which unds were
meant t! incenti'ise :atche"!r t! cause him (the Accused, harm (&ec!rd
1531 "ines 23C23 and &ec!rd 1532 "ines 1C2,.
815. *uring her e'idence0 Pr!ess!r D!rster !#ined0 that in her 'iew0 the
Accused is and has been 'u"nerab"e !n acc!unt ! his #h$sica" disabi"it$
(&ec!rd0 #age 28120 "ines 13C15,. She a"s! c!nirmed0 that the
Accused7s #erce#ti!n and e9#erience ! crime0 c!ntributed t! his
'u"nerab"e state (&ec!rd0 #age 28-30 "ines 12C23,.
81.. Pr!ess!r Sch!"tF re#!rted that the Accused7s increased state !
'u"nerabi"it$ resu"ts r!m h!w he #ercei'ed crime and the eects that it
ma$ ha'e !n him (E9hibit JJJ0 #age 25320 "ines 22C28 and #age 25330
"ine 1,.
812. Pr!ess!r Sch!"F re#!rted as !""!ws:
812.1 <hi"st dea"ing with the irst de'e"!#menta" #hase ! the
Page 181
Accused0 being -C2 $ears0 it is #!ssib"e that a b"ue#rint !
mistrust0 insecurit$ and being unsae was a"read$ "aid d!wn at
that stage ! his #ers!na"it$ de'e"!#ment0 because ! a
traumatic e9#erience0 his #reC'erba" brain c!u"d n!t #r!cess and
ma%e sense ! (E9hibit JJJ0 #23 "ine 31C31,?
812.2 &eerring t! the )tw! Oscar7s+ 0
COne being a 'u"nerab"e0 scared0 disab"ed #ers!n0
C The !ther being a str!ng #h$sica" #ers!n achie'ing be$!nd
e9#ectati!n (E9hibit JJJ #28 "ine .C22,?
812.3 There is e'idence t! indicate that the Accused d!es ha'e a
hist!r$ ! ee"ing insecure and 'u"nerab"e0 es#ecia""$ when he is
with!ut his #r!stheses (E9hibit JJJ #3- "ine 1C3,
82-. Pr!ess!r D!rster testiied that:
82-.1 As !ne is increasing"$ an9i!us0 !ne ee"s m!re and m!re
insecure ab!ut !ne7s #ers!na" saet$0 e'en th!ugh actua""$
!ne7s saet$ ma$ n!t be threatened0 b$ ha'ing increased "e'e"s
! an9iet$0 $!u #ercei'e $!ur surr!undings as being threatening0
when ma$be the$ are n!t (&ec!rd 28-. "ine 11C12,?
82-.2 <hi"st in S!uth Arica0 the Accused describes ha'ing increased
"e'e"s ! an9iet$ and w!rries ab!ut being !""!wed as we"" as
ab!ut the securit$ ! his h!me (&ec!rd 28-. "ine 2-C28,?
Page 182
82-.3 That the Accused e9#erienced :atche"!r7s in'!"'ement as an
!nCg!ing #h$sica" threat. (&ec!rd 2812 "ine 13C11,.
821. Pr!ess!r *erman testiied as !""!ws:
821.1 The mar%ers ! #s$ch!"!gica" distress0 name"$ an9iet$ and
de#ressi!n0 were higher in ath"etes with disabi"it$?
821.2 @e !und the Accused t! be h$#erC'igi"ant which trans"ates int!
him scanning !r #!tentia" threats with a #ur#!se ! rem!'ing
himse" r!m harm7s wa$ (&ec!rd 2551 "ine 11C1.,?
821.3 That the Accused #resented with an e9cessi'e"$ e9aggerated
start"e res#!nse0 in that0 in res#!nse t! a n!ise0 the Accused
w!u"d c!'er his head and ears and c!wer awa$ unti" the
cessati!n ! the n!ise (&ec!rd 2552 "ine 2C5,?
821.3 The "e'e"s ! an9iet$ and ear0 as we"" as the start"e res#!nse0 !r
the "ight and ight res#!nse is increased in certain indi'idua"s
a"icted b$ im#airment !r disabi"it$ (&ec!rd 2553 "ine 3C1?
&ec!rd 2551 "ine 23C28 and &ec!rd 2555 "ine 1C2,?
822. *es#ite the #resence ! his d!gs0 and that same w!u"d #resent as a
saet$ eature at the Accused7s h!me0 the Accused c!nirmed that his
d!gs ha'e a 'er$ #"acid tem#erament (&ec!rd0 #age 1320 "ines 23C23,.
Stander c!nirmed the Accused7s e'idence (&ec!rd0 #age 21320 "ines
12C23,.
Page 183
823. C!nseBuent"$0 the d!gs %e#t at the Accused7s #remises w!u"d n!t ha'e
#resented much ! an !bstac"e t! intruders #"anning t! access the
Accused7s h!me0 at "east n!t in the mind ! the Accused.
823. @e c!nirmed that he had #urchased a h!me with enhanced securit$
eatures in E!hannesburg0 a ste# ta%en b$ him t! im#r!'e u#!n his !wn
securit$ arrangements (&ec!rd0 #age 13230 "ines .C18,.
A>>0@65+@ S2?26 /A M<15 D04<1D H<@ T6@2<3/1=
828. In assessing the e'idence ! the Accused0 regard must be had t! the
state ! mind ! the Accused during his e'idence.
821. The #s$chiatrists a##!inted b$ the C!urt !und that the Accused
#resented with an ad$ustment disorder with mixed anxiety and
depressed mood that developed after the alleged incident (Ps$chiatrist
&e#!rt0 E9hibit PPP,.
825. There can be n! d!ubt that the ab!'e dis!rder and de#ressed m!!d
must ha'e had an ad'erse eect !n the Bua"it$ ! the e'idence ! the
Accused in the witness b!9. It is uncertain t! what e9tent it in"uenced
the Bua"it$ ! his e'idence.
82.. *r /ine0 !n beha" ! the Accused0 ser'ed !n the #ane" ! three
#s$chiatrists !r #ur#!ses ! the s!Cca""ed secti!n 5. re#!rt. *r /ine
suered a heart attac% and c!u"d n!t gi'e e'idence (&ec!rd 22250 "ines
11C2-0 D!" 3.,.
Page 183
822. The deence wanted t! c!nsu"t with the !ther #s$chiatrist0 *r N!tFe0 wh!
was a##!inted !n beha" ! the State t! ser'e !n the #ane"0 and wh! was
#resent at C!urt0 t! determine t! what e9tent the dis!rder and
de#ressi!n w!u"d ha'e im#acted !n the abi"it$ ! the Accused in the
witness b!9 when under stress and #ressure0 #articu"ar"$ in 'iew ! the
act that the State did n!t intend t! ca"" *r N!tFe (&ec!rd 22230 "ines 12C
130 D!" 35,. The a##"icati!n t! c!nsu"t was reused. As a c!nseBuence0
the e9tent ! the eect !n the testim!n$ ! the Accused0 c!u"d n!t be
determined0 but a reas!nab"e inerence is that it must ha'e had an
ad'erse eect !n the Accused.
83-. The ab!'e must be c!nsidered with due regard t! the act that the
Accused caused the death ! a #ers!n with wh!m he was in a "!'ing
re"ati!nshi#. The eect ! that !n the Accused was in C!urt and during
his e'idence (i.e. his '!miting0 retching and cr$ing,.
831. The c!m#r!mised state ! mind ! the Accused became e'ident in the
re#!rt ! Pr!ess!r Sch!"tF (E9hibit JJJ,0 the inde#endent #s$ch!"!gist
a##!inted b$ the C!urt. @e re#!rted that:
831.1 The Accused7s memory was compromised at times. ?is
manner was respectful and cooperative. ?e reported that he
had been using antiBdepressant, anxiolyotics and sedatives
since the events of 5A Kebruary, prescribed to him by a
psychiatrist. (E9hibit JJJ0 #age 30 "ines 38C3-,
831.2 The Accused suered r!m a P!st Traumatic Stress *is!rder
Page 188
and a >aA!r *e#ressi'e *is!rder as deined b$ the *iagn!stic
and Statistica" >anua" = 8 (*S>8,.
831.3 The degree ! an9iet$ and de#ressi!n he #resented with0 was
signiicant.
831.3 @e was m!urning the "!ss ! the *eceased.
831.8 @e was se'ere"$ traumatised b$ the e'ents ! 13 /ebruar$ 2-13?
(&e#!rt0 #ar 8.10 "ines 1.C230 #age 22? #ara 8.10 "ines 3-C320
#age 3-, and
831.1 there was e'idence t! indicate that the Accused was genuine in
his ee"ings t!wards the *eceased0 and that the$ had had a
n!rma"0 "!'ing re"ati!nshi#.
832. The Accused0 in e'idence c!nirmed that he was !n medicati!n since
ab!ut the third wee% in /ebruar$ 2-13. @e was using antiCde#ressants
and a s"ee#ing sedati'e (&ec!rd 13820 "ines 2C1.,. The Accused
e9#erienced diicu"t$ with s"ee#ing (&ec!rd 13820 "ines 12C28,.
833. The ab!'e acts can "ea'e n! d!ubt that the abi"it$ ! the Accused0 in the
witness b!90 must ha'e been c!m#r!mised.
833. The State ch!se t! e9#"!it his c!m#r!mised state ! mind b$ cr!ssC
e9amining the Accused:
833.1 in a c!mbati'e and aggressi'e manner !'er an e9tended #eri!d
! se'en da$s a"s! re#eating Buesti!ns c!nsistent"$?
Page 181
833.2 b$ intr!ducing #h!t!s and res!rting t! a""egati!ns designed t!
e'!%e se'ere em!ti!ns r!m the Accused?
833.3 b$ ca""ing him a "iar !n !ccasi!ns where his e'idence c!u"d n!t
be branded as untruthu". It is in an$ e'ent !n"$ the #rer!gati'e
! the C!urt t! decide whether !r n!t the Accused is a "iar.
838. <e reer t! s!me instance ! such cr!ssCe9aminati!n t! su##!rt the
submissi!n.
838.1 The State re"ied !n the "ength ! the e9tensi!n c!rd t! ca"" the
Accused a "iar and t! #ut t! the Accused that his e'idence was
im#!ssib"e. @!we'er0 the "ength ! the e9tensi!n c!rd was
ne'er #r!'en0 s! as t! Austi$ the accusati!ns0 and c!u"d ne'er
be #r!'ed0 as the e9tensi!n c!rd m$steri!us"$ disa##eared at a
time when it was in the cust!d$ !0 and under the c!ntr!" ! the
#!"ice. <e wi"" in argument dea" with the e9#"anati!n urnished
b$ the #!"ice (&ec!rd0 1883 "ines 3C3,.
838.2 >r Ne" #ut t! the Accused that he was a "iar when he said that
the ans had been #"ugged int! the e9tensi!n c!rd. This was
seeming"$ #remised !n the )"ength+ ! the e9tensi!n c!rd and
the a'ai"ab"e s#ace !n the mu"tiC#"ug !r #"ugs t! be inserted int!
the mu"tiC#"ug. @!we'er0 Ph!t! )OO+ sh!ws C!"!ne" 'an
&ensburg #"ugging in !r un#"ugging a #"ug in the mu"tiC#"ug !
the e9tensi!n c!rd. <hen he was as%ed ab!ut it0 he said that he
was testing the fan. /urtherm!re0 the "ength ! the e9tensi!n
Page 185
c!rd was n!t #r!'ed0 as it went )missing+. <e ha'e dea"t with
this ab!'e.
838.3 >r Ne" drew the ana"!g$ between a waterme"!n and the head !
the *eceased0 and re#eated"$ demanded that the Accused
sh!u"d "!!% at the #!stCm!rtem #h!t! ! the *eceased7s head.
This was c"ear"$ d!ne t! em!ti!na""$ u#set the Accused !r
#ur#!ses ! cr!ssCe9aminati!n. (&ec!rd 18-20 181- and 1813,.
838.3 >r Ne" re#eated"$ #ut it t! the Accused that he had killed the
*eceased. This "ine ! Buesti!ning and the manner in which it
was #ut was n!t necessar$0 but designed t! e9#"!it the
heightened em!ti!ns ! the Accused. (&ec!rd 132.0 "ines 2C11
and 12C2-? 1818 "ine 28? 1811 "ine 2? 1812 "ines 13C18? 1813
"ines .C2 and 11C13? 181. "ines 1-C13? 1111 "ine 3? 151. "ines 5C
.? 1521 "ine 8? 12-2 "ine 18? 12-3 "ine 13? 1232 "ines 1C3? 123-
"ine 13 and 1231 "ines 12C13,
838.8 >r Ne" re#eated"$ ca""ed the Accused a "iar0 which is a inding
!n"$ t! be made b$ the C!urt e9ercising its #rer!gati'e t! d! s!.
This was d!ne s!"e"$ t! unsett"e the Accused.
838.1 >r Ne" #ut it t! the Accused that the *eceased was standing
right in r!nt ! the t!i"et d!!r0 ta"%ing t! the Accused when he
sh!t her. (&ec!rd 15.10 "ines 1C12,. The State %new it had n!
acts u#!n which t! #remise such a statement0 but that it uti"ised
it as a strateg$ t! unsett"e the Accused0 during cr!ssC
Page 18.
e9aminati!n.
838.5 >r Ne" #ut it t! the Accused that he had threatened t! brea%
>ar% :atche"!r7s "egs. This was d!ne t! intr!duce in cr!ssC
e9aminati!n0 e'idence which did n!t !rm #art ! the State7s
case. (&ec!rd 15220 "ines 23C28,. The State ma$ n!t0 in cr!ssC
e9aminati!n0 re"$ !n e'idence n!t #resented b$ the State.
(Schmidt : ;aw ! E'idence0 2C11,.
838.. >r Ne" #ut it t! the Accused that his a#!"!g$ t! the Steen%am#
ami"$ at the beginning ! his e'idence0 was a"" ab!ut the
Accused and that the Accused had n!t th!ught ab!ut the
Steen%am# ami"$ in the #r!cess. >r Ne" urther accused the
Accused ! n!t being humb"e en!ugh t! d! it in #ri'ate and that
it was d!ne s! as t! create a s#ectac"e in c!urt and within the
#ub"ic d!main0 and that the Accused c!u"d n!t ace them
because that w!u"d mean ha'ing t! ta%e res#!nsibi"it$ and that
he did n!t want t! this. The Accused7s res#!nse t! this was that
he had n!t had the !##!rtunit$ t! meet with the Steen%am#
ami"$ because the$ indicated that the$ were n!t read$ t! meet
with him. (&ec!rd0 #ages 1811 "ines 1C28 and 1815 "ines 1C1.,.
838.2 The !""!wing da$0 >r Ne" was !b"iged t! #"ace !n rec!rd0 at the
reBuest ! >rs Steen%am#0 that the Accused had indeed been
te""ing the truth c!ncerning him ha'ing reBuested a meeting with
the Steen%am# ami"$ #ri!r t! the tria"0 but that it was indeed true
that the$ were n!t read$ !r such a meeting (&ec!rd0 #age 1125
Page 182
"ines 8C11,.
831. The c!mbined eect ! the ab!'e must be ta%en int! acc!unt when
c!nsidering the e'idence ! the Accused.
835. The Accused7s e'idence must a"s! be c!nsidered0 with due regard t! his
securit$ c!ncerns in the c!nte9t ! his 'u"nerabi"it$ and an9iet$. @is
'u"nerabi"it$ is n!t !n"$ "imited t! #h$sica" disabi"ities0 but a"s! the s"!w
burn eect ! his disabi"it$ !'er the $ears.
TB6 A>>0@65+@ 764@</1 ?2 2B6 24<?8
83.. @a'ing arri'ed h!me at a##r!9imate"$ 1.h18 !n 13 /ebruar$ 2-130 the
Accused had #"aced his irearm under his bed ne9t t! the #edesta" !n
the "et hand side ! the bed (&ec!rd0 #age 13180 "ines 21C28 and #age
13110 "ine 1,. The e'idence ! >s Ta$"!r is that the Accused !rdinari"$
#"aced his irearm ne9t t! his bed !n the bedside tab"e !r ne9t t! his
#r!sthesis !n the "!!r (&ec!rd0 #age 3220 "ines 1C2,.
832. The State0 at n! stage0 cha""enged the Accused7s 'ersi!n that he had
#"aced the irearm !n the "et hand side ! the bed where the Accused
had s"e#t !n the e'ening in Buesti!n0 due t! a sh!u"der inAur$ that he had
sustained.
83-. The act that the h!"ster ! the irearm was !und !n the "et bedside
tab"e0 ser'es as c!rr!b!rati!n !r the Accused7s 'ersi!n as t! where he
had unh!"stered the irearm. See #h!t! 58.
Page 11-
831. E9hibit :::0 same being an e9change ! <hatsA## messages between
the Accused and the *eceased0 read int! the rec!rd b$ Ca#tain >!""er at
#age 12320 "ines 1C1.0 c!nirms that the Accused did indeed e9#erience
#r!b"ems with his sh!u"der. This su##!rts the Accused7s 'ersi!n as t!
wh$ he s"e#t !n the "et hand side ! the bed. /urtherm!re0 the
#h!t!gra#h at #h!t! 1 de#icts the Accused with the %inetic ta#e attached
t! his right sh!u"der which c!rr!b!rates his 'ersi!n ! the sh!u"der inAur$
sustained b$ him.
832. <hi"st the State c!ntended that the *eceased had #"aced a"" ! her
#ers!na" be"!ngings t! the "et ! the bed0 which im#"ied that she w!u"d
ha'e s"e#t !n the "et ! the bed0 it was ne'er #ut t! the Accused that his
'ersi!n with reerence t! 12 and 13 /ebruar$ (as t! their #!siti!ning !n
the bed, was a"se.
833. On the Accused7s 'ersi!n0 dinner had been c!nsumed b$ him and the
*eceased sh!rt"$ ater 12h-- !n 13 /ebruar$ 2-13 (&ec!rd0 #age 131-0
"ines 8C1,. This 'ersi!n b$ the Accused was ne'er dis#uted b$ the State.
833. The Accused7s 'ersi!n in this regard0 is c!rr!b!rated b$ E9hibit << (the
rec!rding ! the iPad acti'it$, r!m which it bec!mes a##arent that
during the h!urs ! 12h1- t! 2-h-- !n 13 /ebruar$ 2-130 n! website
acti'it$ was rec!rded. C!nseBuent"$0 E9hibit << ser'es as
c!rr!b!rati!n !r the Accused7s 'ersi!n that dinner was c!nsumed
during the a!rementi!ned times0 which e9#"ains wh$ n! website acti'it$
a##eared !n the iPad (&ec!rd0 #age 131-0 "ines 2C11,.
Page 111
838. Ater dinner0 the Accused went t! the main bedr!!m. @e !#ened the
ba"c!n$ d!!r as it was a 'er$ humid e'ening and the airCc!nditi!ning unit
was n!t uncti!na" (&ec!rd0 #age 13110 "ines 5C12,.
831. The Accused testiied that0 " opened the sliding doors onto the balcony
(&ec!rd0 #age 13110 "ine 21,. The ab!'e descri#ti!n ! h!w the d!!rs
were !#ened b$ the Accused0 is inc!rrect in the sense that the d!!r is in
act a s"iding d!!r and that it sim#"$ s"ides a"!ng the wa"" ! the bedr!!m
as !##!sed t! such d!!r !#ening !utwards !nt! the ba"c!n$.
835. This as#ect ! the Accused7s e'idence is signiicant in that he
err!ne!us"$ described ha'ing !#ened the d!!r onto the balcony0
whereas0 his e'idence sh!u"d ha'e been that he mere"$ !#ened the d!!r
! the ba"c!n$.
83.. The signiicance ! this is t! be !und in the act that the Accused stated
that0 " did not go onto the balcony. " picked the fan up which was on the
balcony and " brought the fan in (&ec!rd0 #age 18220 "ines 5C.,. C"ear"$0
the Accused #ercei'ed the !ne an t! ha'e been !n the ba"c!n$0 as the
!ne "eg ! the an was !n the ba"c!n$. This was misc!nstrued b$ >r Ne"
wh! suggested that the Accused had "ied with reerence t! him ha'ing
g!ne onto the ba"c!n$ as stated in the bai" a##"icati!n. The mista%e
made b$ the Accused is mere"$ as a c!nseBuence ! his manner of
speaking.
832. Once the curtains are drawn in the main bedr!!m0 the inside ! the r!!m
is dar% and there is hard"$ an$ 'isibi"it$ (&ec!rd0 #age 13120 "ines 21C28,.
Page 112
88-. In her e'idence0 >s Ta$"!r c!nirmed that !nce the curtains had been
drawn0 the r!!m w!u"d be i""ed with dar%ness (&ec!rd0 #age 3220 "ines
11C12,. *i9!n c!nirmed the a!reg!ing e'idence.(&ec!rd0 #age 12810
"ines 3C28 and #age 12820 "ines 1C.,.
881. C!nseBuent"$0 the "ac% ! 'isibi"it$ in the main bedr!!m is c!rr!b!rati'e
! the act that the Accused0 !nce he had drawn the curtains0 w!u"d in a""
#r!babi"it$ n!t ha'e !bser'ed the *eceased ma%ing her wa$ t! the
bathr!!m0 m!re s!0 i he was acing in a dierent directi!n at the time.
882. That he was in the habit ! "!c%ing the bedr!!m d!!r e'er$ night0 and
that ha'ing d!ne s!0 he #!siti!ned the cric%et bat between the d!!r and
the sung"ass cabinet s! as t! ser'e as a sec!ndar$ securit$ measure as
he be"ie'ed that the "!c% mechanism !n the d!!r was n!t 'er$ str!ng
(&ec!rd0 #age 13130 "ines 13C18,. These as#ects ! the Accused7s
'ersi!n were n!t cha""enged b$ the State. @is e'idence c!nirms his ear
! #!ssib"$ a""ing 'ictim t! crimina"s entering his h!me at night.
883. The Accused testiied that he had acti'ated the a"arm !n the night in
Buesti!n (&ec!rd0 #age 15-30 "ines 23C23,. @!we'er0 he c!nceded that
he d!es n!t ha'e an inde#endent rec!""ecti!n ! switching the a"arm !
(&ec!rd0 #age 15110 "ines 1C2,.
883. The Accused had rem!'ed his #r!sthesis and #"aced them in c"!se
#r!9imit$ t! the s"iding d!!rs (between the bed and the s"iding d!!rs,
#ri!r t! him g!ing t! bed s! as t! a""!w them t! be aired (&ec!rd0 #age
13130 "ines 11C22,.
Page 113
888. <hi"st >r Ne" suggested that the an was #!siti!ned as it is de#icted in
#h!t!gra#h 880 he c!u"d n!t dis#ute the e'idence ! the Accused that
the an c!u"d n!t ha'e been in that #!siti!n as that #!siti!n had a"read$
been !ccu#ied b$ his #r!sthesis (u# unti" the time that the Accused
attached his #r!sthesis, !""!wing the sh!!ting. There!re0 it is c"ear that
the an c!u"d n!t ha'e been in the #!siti!n as is de#icted in #h!t!gra#h
88.
881. The Accused testiied that he e"" as"ee# between 21h-- and 22h-- !n
13 /ebruar$ 2-13. :e!re he e"" as"ee#0 he had as%ed the *eceased t!
bring in the ans0 and t! "!c% the s"iding d!!r be!re she e"" as"ee#.
885. @e w!%e u# during the ear"$ m!rning h!urs ! 13 /ebruar$ 2-130 and
n!ticed that the ans were sti"" running and that the s"iding d!!r was
!#en (&ec!rd0 #age 13120 "ines 12C18,.
88.. The *eceased as%ed him0 &an you not sleep my babaM (&ec!rd0 #age
13120 "ines 12C11,. In cr!ssCe9aminati!n0 the State cha""enged the
Accused !n this 'ersi!n and it was #ut t! him that he had in'ented the
discussi!n with the *eceased (&ec!rd0 #age 158.0 "ines 13C18,. The
Accused denied that he had in'ented such a discussi!n as a""eged
(&ec!rd0 #age 158.0 "ines 18C12,.
882. @a'ing c!""ected the ans (r!m the ba"c!n$,0 he #"aced the sma"" an Aust
inside the r!!m and the "arger an in c"!se #r!9imit$ t! the r!nt ! the
bed0 whereater he c"!sed and "!c%ed the s"iding d!!rs and drew the
curtains. @e c!nirmed that at that stage0 the ans were sti"" running
Page 113
(&ec!rd0 #age 13120 "ines 12C28,.
81-. C!"!ne" Dan &ensburg testiied that u#!n his arri'a" at the scene0 n!ne
! the ans were switched !n (&ec!rd0 #age 5550 "ine 1,. @!we'er0
during cr!ssCe9aminati!n0 Dan &ensburg c!nceded that u#!n him irst
entering the main bedr!!m0 his !cus was n!t !n whether the an was
switched !n !r ! (&ec!rd0 #age ...0 "ines 11C12,. In reCe9aminati!n he
admitted that he c!u"d n!t sa$ i the an was !n !r !. <e ha'e dea"t
with C!"!ne" 'an &ensburg7s e'idence ab!'e.
811. @a'ing c"!sed the curtains0 the !n"$ s!urce ! "ight in the bedr!!m was
that ! the "itt"e ;E* "ight0 !n the am#"iier. This "ight s!urce made it
#!ssib"e !r the Accused t! !bser'e the *eceased7s Aeans "$ing !n the
"!!r (&ec!rd0 #age 135-0 "ines 1C1,.
812. @e #ic%ed u# the Aeans r!m the "!!r s! as t! c!'er the ;E* "ight. As he
was d!ing s!0 he heard what s!unded the wind!w s"iding !#en and
stri%ing the rame as if it had slid to a point where it cannot slide
anymore (&ec!rd0 #age 135-0 "ines 1C1- and #age 153.0 "ines 11C1.,.
813. @e inter#reted the n!ise emanating r!m the bathr!!m as that ! a
burg"ar gaining entr$ int! his h!me (&ec!rd0 #age 135-0 "ines 2-C21,.
813. A distincti!n can be drawn between the incident in Buesti!n and an
incident !n a #re'i!us !ccasi!n reerred t! b$ >s Ta$"!r. On a #re'i!us
!ccasi!n0 the Accused had heard a n!ise d!wnstairs0 the danger
#ercei'ed b$ him did n!t #r!'e t! be as immediate as was the case !n
the m!rning in Buesti!n. This being s! due t! the bathr!!m being
Page 118
situated within c"!se #r!9imit$ t! the main bedr!!m.
818. A urther distinguishing eature in >s Ta$"!r7s e'idence0 is that the
Accused was n!t the !n"$ ma"e #resent in the h!use at that time0 as a
riend ! his had a"s! s"e#t !'er that #articu"ar night. (&ec!rd 312 "ines
13C11,.
811. @a'ing heard the n!ise c!ming r!m the bathr!!m0 he r!Fe0 his irst
th!ughts were that he sh!u"d arm himse" s! as t! #r!tect the *eceased
and himse". In d!ing s!0 he rushed t! c!""ect his irearm r!m under the
"et hand side ! the bed (&ec!rd0 #age 13510 "ines 2C1-,.
815. The Accused stated that he e"t 'u"nerab"e n!t ha'ing had the beneit !
ha'ing his #r!stheses attached0 hence him ha'ing armed himse" with
his irearm (&ec!rd 151- "ines 11C13,.
81.. @a'ing armed himse"0 and as he "et the bed0 he whis#ered t! the
*eceased t! Pet down and phone the police (&ec!rd0 #age 13510 "ines
2-C21,. *uring cr!ssCe9aminati!n he testiied that:
81..1 he did n!t whis#er0 but had c!mmunicated with the *eceased in
a s!t manner (&ec!rd0 #age 153-0 "ine 28,? and
81..2 he c!nirmed that it was c!rrect when >r Ne" #ut it t! him that he
had in act whis#ered (&ec!rd0 #age 1.380 "ine 3,.
81..3 It is res#ectu""$ submitted that this min!r c!ntradicti!n is n!t
materia" and certain"$ n!t indicati'e ! the Accused ha'ing t!"d
Page 111
an untruth.
812. @e reca""ed s"!wing d!wn his #ace be!re he entered the #assage
"eading t! the bathr!!m as he was araid that at that time0 the intruder4s
was4were a"read$ #!siti!ned in the #assage. @e had his irearm
e9tended in r!nt ! him (&ec!rd0 #age 13510 "ines 13C1.,.
85-. As he entered the #assage0 he was !'erc!me with ear and sh!uted !r
the intruder4s t! get !ut ! his h!me0 he a"s! sh!uted !r the *eceased
t! #h!ne the #!"ice (&ec!rd0 #age 13510 "ines 23C28,.
851. *uring cr!ss e9aminati!n0 >r Ne" #ut it t! the Accused that i he had
s#!%en t! the *eceased0 the tw! ! them c!u"d ha'e ta%en )"!ts ! !ther
ste#s+0 name"$ that the$ c!u"d ha'e g!ne t! the ba"c!n$0 !r hide behind
the bed (&ec!rd 151. "ines 18C12 and &ec!rd 1512 "ines 1C.,.
852. The Accused stated that instead ! c!wering and running awa$0 when he
heard the n!ise made b$ the bathr!!m wind!w0 he wanted t! #ut himse"
between the *eceased and the danger. (&ec!rd 1512 "ines 2C1,.
853. The Accused0 ha'ing ac%n!w"edged the #!ssibi"it$ that him and the
*eceased c!u"d ha'e "ed 'ia the main bedr!!m d!!r0 he did n!t !""!w
that r!ute as he has 'er$ "imited m!bi"it$ (whi"st !n his stum#s, !n a hard
surace0 such as ti"es (&ec!rd 1515 "ines 15C23,. The e'idence ! *r
Derse"d c!nirms the a!reg!ing.
853. @e heard a d!!r s"am. This he underst!!d t! ha'e been the t!i"et d!!r
s"amming c"!sed0 which t! him0 c!nirmed that there was s!me!ne
Page 115
inside the t!i"et0 !r at the 'er$ "east inside the bathr!!m (&ec!rd0 #age
13520 "ines .C13,.
858. In cr!ssCe9aminati!n0 he testiied that he th!ught that there was either
s!meb!d$ g!ing int! the t!i"et0 !r s!me!ne ha'ing %ic%ed the t!i"et d!!r
in the #r!cess ! "eeing the h!use (&ec!rd0 #age 15530 "ines 1-C15,.
851. @a'ing #!siti!ned himse" at the entrance t! the bathr!!m0 he !bser'ed
that0 4T7here was no light in the bathroom but "ight r!m the !utside
made it #!ssib"e t! see in the bathr!!m (&ec!rd 15530 "ines 2C20 D!" 2-,.
@e !bser'ed that the bathr!!m wind!w had been !#ened.
855. At that time he was unsure ! whether there were #e!#"e4intruders inside
the t!i"et !r whether the$ were !n a "adder that the$ c!u"d ha'e used t!
gain access t! the bathr!!m0 !r whether the$ were around the corner at
that point0 meaning them being #!siti!ned within the bathr!!m. At that
#!int in time0 he had his irearm #!inted in r!nt ! him (&ec!rd0 #age
13530 "ines 1C11,.
85.. <hi"st at the entrance ! the bathr!!m0 he again screamed !r the
*eceased t! #h!ne the #!"ice. In his mind0 he was n!t sure whether
s!me!ne was g!ing t! e9it the t!i"et t! attac% him0 !r whether s!me!ne
was g!ing t! c"imb u# the "adder and attac% him b$ sh!!ting at him
(&ec!rd0 #age 13530 "ines 1C13,.
852. @e heard a n!ise r!m inside the t!i"et and he #ercei'ed this t! be
s!me!ne c!ming !ut ! the t!i"et. @e urtherm!re testiied0 efore "
knew it, " had fired four shots at the door L (&ec!rd0 #age 13580 "ines
Page 11.
5C2,.
8.-. The Accused suggested that the s!und ! w!!d m!'ing0 resemb"ed the
d!!r being !#ened (&ec!rd 15.. "ines 8C.,. @e testiied that the d!!r
made a %n!c%ing n!ise when it !#ened (&ec!rd 15.. "ines 12C2-,.
8.1. @e returned t! the bedr!!m and searched !r the *eceased. @a'ing
been unab"e t! ind the *eceased0 he returned t! the bathr!!m and
!und the t!i"et d!!r "!c%ed. It dawned u#!n him that it c!u"d ha'e been
the *eceased in the t!i"et0 when he rea"iFed that she was n!t !n the bed
(&ec!rd 1.22 "ines 13C15,.
8.2. @e returned t! the bedr!!m0 !#ened the s"iding d!!r and screamed
?elp, help, help. >r E!hns!n c!nirmed ha'ing heard a ma"e '!ice
sh!uting !r he"# #ri!r t! him ma%ing a ca"" at -3h11 (&ec!rd0 #age 1.-0
"ines 22C23,. >rs :urger a"s! c!nirmed the a!reg!ing (&ec!rd0 #age
2.0 "ines 21C28,. >rs Nh"engethwa a"s! testiied that she had heard the
same screaming !r he"# #ri!r t! her husband ma%ing a ca"" t! securit$ at
-3h11 (&ec!rd0 #age 223.0 "ines 1C1-,.
8.3. It is res#ectu""$ submitted0 that the a!reg!ing e'idence n!t !n"$ reutes
the State case as t! the timing ! the sh!!ting0 at -3h150 it is
inc!m#rehensib"e that the sh!uting !r he"# w!u"d ha'e !ccurred #ri!r t!
the sh!!ting0 as a""eged.
8.3. @e attached his #r!stheses0 returned t! the bathr!!m and attem#ted t!
!#en the d!!r b$ %ic%ing it. @e returned t! the bedr!!m and etched the
cric%et bat whi"st screaming0 sh!uting and cr$ing !ut (&ec!rd0 #age
Page 112
13550 "ines 5C.,. The Accused stated that his '!ice c!u"d be ! a high
#itch when sh!uting0 !r screaming !ut "!ud (&ec!rd 1.1. "ines 11C2-,. It
was #atent in his e'idence that his '!ice #itches when he is an9i!us.
8.8. *i9!n c!nirmed that the mar% !und !n the d!!r0 as de#icted in #h!t!
EEE2.1- t! EEE2.11 had indeed been caused b$ a hard0 !rceu" !bAect
m!'ing in an u#ward m!ti!n against the d!!r (&ec!rd0 #age 12180 "ines
1C28 and #age 12110 "ines 1C28,. *i9!n was ! the 'iew that the mar% as
a!resaid0 was c!nsistent with a mar% !und !n the s!"e ! the right
#r!sthesis0 as de#icted in #h!t! EEE2.12 and that such mar% was in a""
#r!babi"it$ caused b$ the #r!sthesis ha'ing been a##"ied with !rce
against the d!!r.
8.1. <hat is a##arent r!m this e'idence is that the Accused had his
#r!sthesis attached at the time when he %ic%ed against the d!!r0 #ri!r t!
ha'ing struc% same with the cric%et bat0 thus it a9i!matica""$ !""!ws that
the Accused had his #r!sthesis attached at a time when he struc% the
d!!r with the cric%et bat.
8.5. This e'idence c!ntradicts the State7s a""egati!n that the Accused was !n
his stum#s at a time when he struc% the d!!r with the cric%et bat0 as
reerred t! supra.
8... @e d!es n!t ha'e a rec!""ecti!n ! ha'ing switched the "ight !n in the
bathr!!m? he h!we'er reca""s that the "ight had been !n at a time when
he %ic%ed the d!!r (&ec!rd0 #age 13550 "ines 11C12,.
8.2. As dem!nstrated ab!'e0 it is c"ear that the #ers!n seen wa"%ing r!m
Page 15-
right t! "et thr!ugh the bathr!!m wind!w0 was in act the Accused0 wh!
at that time had his #r!sthesis attached whi"st wa"%ing in the bathr!!m.
This e'idence reutes the State7s case that the sh!!ting t!!% #"ace at
-3h15 as it was c!mm!n cause that he was !n his stum#s at the time !
the sh!!ting.
82-. In acc!rdance with his rec!""ecti!n0 he struc% the d!!r three times with
the cric%et bat0 whereater he br!%e !ut a #ane" ! the d!!r and !und
the %e$ "$ing !n the "!!r inside the bathr!!m. @e un"!c%ed the d!!r and
!#ened it (&ec!rd0 #age 13550 "ines 12C28 and #age 135.0 "ines 1C1,.
821. @e testiied that he was screaming !ut the *eceased7s name whi"st
stri%ing the d!!r with the cric%et bat (&ec!rd 1.1. "ines 11C12,0 and that
he struc% the d!!r ! centre t! the right and !n the rame as he was
c!ncerned that !ne ! the #"an%s w!u"d stri%e the *eceased i she was
in the t!i"et (&ec!rd 1215 "ines 1.C18,.
822. >rs Sti## described the sec!nd s!unds heard b$ her as inter alia thud
s!unds in her written statement (E9hibit HH,. C!nsidering the time"ine !
e'ents0 the sec!nd s!unds were heard at -3h15.
823. @e denied that the magaFine rac% was !und as it is de#icted in
#h!t!gra#h 123 (&ec!rd 1223 "ines 1-C11,. @e testiied that he !und the
magaFine rac% t! the ar right (acing the t!i"et d!!r, ! the t!i"et against
the tw! wa""s (&ec!rd 1223 "ines 8C11,. *i9!n0 with reerence t! #h!t!
123 and the b"!!d im#rint made b$ the magaFine rac%0 sh!wed this
rec!""ecti!n ! the Accused t! be inc!rrect. Inderstandab"$0 at that time
Page 151
the Accused was e9treme"$ stressed and em!ti!na" as it was at the time
when he !und the *eceased in the t!i"et and his !bser'ati!ns c!u"d
ha'e been c!m#r!mised.
823. The Accused "et his irearm in a c!c%ed #!siti!n in r!nt ! the t!i"et
which sh!ws his an9iet$ c!nsistent with his 'ersi!n.
828. The Accused #h!ned E!han Stander at -3:12:330 Netcare at -3:2-:-8
(E9hibit KK., and securit$ at -3:21.
TB6 A?1@
821. @e was c!nr!nted in cr!ssCe9aminati!n c!ncerning his reerence t! the
!ne an !n the ba"c!n$0 which he had br!ught in0 as reerred t! in the
bai" aida'it0 whi"st menti!ning tw! ans at the tria".
825. This c!ntradicti!n must be c!nsidered in 'iew ! his e'idence that ,s "
have said earlier, the one fan!s leg was on the balcony and the other fan
was between the two legs of the tripod fan and it was on the carpet. .o
that 4sic7 not outside. " brought the fan that was on the balcony inside.
,nd further, +hat " can say here, is that this talks about bringing in the
fan. There was one fan that was not inside the house.
82.. The a!reg!ing urnishes an e9#"anati!n as t! the reerence t! the an in
the bai" statement which made reerence t! !n"$ !ne an being br!ught
int! the bedr!!m r!m the ba"c!n$.
822. *uring cr!ssCe9aminati!n0 he was Buesti!ned ab!ut the a""egati!n in the
Page 152
#"ea e9#"anati!n0 that tam#ering had ta%en #"ace !n the scene. It had
been indicated that 4T7he fan!s cord had moved (&ec!rd0 #age 18380
"ine 1.,.
1--. &es#!nding t! a Buesti!n b$ >r Ne"0 as t! h!w the ans were disturbed0
he res#!nded b$ stating that the ans had been tam#ered with0 but n!t
disturbed (&ec!rd0 #age 18320 "ines 23C28 and #age 183-0 "ines 1C2,. At
a "ater stage he testiied that The fans were also moved at different
points around the room (&ec!rd0 #age 183-0 "ines 1-C11,.
1-1. The Accused was adamant that the an c!u"d n!t ha'e been in the
#!siti!n as is de#icted !n Ph!t! 880 as it w!u"d ha'e !bstructed his
access t! the ba"c!n$ when he ran !ut !nt! the ba"c!n$ t! ca"" !r he"#
(&ec!rd 11.3 "ines 2C11,.
1-2. @e testiied that0 The fans are plugged into the extension cord that is L
ehind the bed on the right hand side of the bed there is a plug. " am
not sure what is plugged in there. " am not sure if it is a double plug. "
know that the extension cord is L That is where the power source was
for the extension cord.
1-3. C!nseBuent"$0 it is c"ear that the e'idence ! the Accused as t! where
the e9tensi!n c!rd had been #"ugged in ma%es it a##arent that such
e9tensi!n c!rd w!u"d ha'e been ca#ab"e ! reaching urther than the
#!siti!n at which >r Ne" suggested that it did (!n the assum#ti!n that it
c!u"d n!t be m!'ed,.
1-3. In act0 the Accused testiied that the e9tensi!n c!rd with the mu"tiC#"ug
Page 153
c!u"d ha'e m!'ed and thus the an c!u"d ha'e been #"aced in the
#!siti!n as suggested b$ him (&ec!rd 1123 "ines 23C28 and &ec!rd
1123 "ines 1C28, >r Ne" #ut t! the Accused: #o, no. " say for certain. "
say take it as a given. "f the multiBplug did not move, that is what " am
saying, answer that 'uestion.(&ec!rd 1128 "ines 13C2-,. (Em#hasis
added,
1-8. <hat >r Ne" #ut t! the Accused0 raises the Buesti!n as t! whether he
c!u"d ha'e #ut such a deiniti'e statement t! the Accused with!ut
e'idence as t! the "ength ! the e9tensi!n c!rd.
1-1. @!we'er0 i he did %n!w the "ength ! the e9tensi!n c!rd and that it
e9ceeded the reaching #!int suggested b$ him0 then he mis"ed the c!urt.
<hat #r!'es t! be m!re sinister is the act that the e9tensi!n c!rd has
n!w disa##eared.
1-5. Initia""$ he testiied0 " plugged the fans into that extension cord (&ec!rd0
#age 18310 "ines 21C22,. @!we'er0 at a "ater stage0 he testiied that it
was #!ssib"e that the #"ug !r the sma"" an c!u"d ha'e been #"ugged int!
the #"ug s!c%et "!cated behind the te"e'isi!n cabinet0 (which e'idence
was n!t dis#uted,.
1-.. @!we'er0 as ar as he c!u"d reca""0 b!th ans were #"ugged int! the mu"tiC
#"ug #!wer s!urce. @!we'er0 he indicated that he did n!t ha'e an
inde#endent rec!""ecti!n ! e9act"$ where the #"ug ! the sma"" an had
been #"ugged in (&ec!rd0 #age 18350 "ines .C2-,.
1-2. C!ncerning the a!reg!ing0 the Accused testiied0 " have not thought
Page 153
about where " plugged in what fan. " know that both the fans were
working. L "f the one fan!s length of the one cord is not long enough to
fit in a power source, then it is obvious that both of them were in the
extension cord. (&ec!rd0 #age 183.0 "ine 28 and #age 18320 "ines 1C3,.
The #ur#!se with which the e9tensi!n c!rd had been uti"ised0 was t!
e9tend the reach ! b!th ans within the c!nines ! the main bedr!!m0
this was in acc!rdance with his e'idence (&ec!rd0 #age 18320 "ines 2-C
22,.
11-. @e stated that he had n!t un#"ugged either ! the tw! ans0 but that he
ma$ ha'e #ushed the an aside in his rantic m!'ements a"th!ugh he
has n! rec!""ecti!n ! ha'ing m!'ed the ans (&ec!rd0 #age 188-0 "ines
2-C23,.
111. I#!n being c!nr!nted with the act that he c!u"d n!t reca"" that he
#re'i!us"$ testiied that b!th ans had been #"ugged int! the e9tensi!n
c!rd0 he testiied that Gy memory is not very good at the moment
(&ec!rd0 #age 183.0 "ine 3,.
112. This is a maniestati!n ! his dis!rder and c!nditi!n t! which we reerred
ab!'e.
TB6 50762
113. As t! the "!cati!n ! the du'et0 the Accused testiied: ;ou could make
out the silhouettes of the bed and of some of the ob$ects on the floor. "t
was at that point that " saw the $eans on the floor and there was enough
light that " could bring L pick up the fan and place it on the floor.
Page 158
113. @e testiied that he did n!t reca"" ha'ing seen a du'et !n the bed
!""!wing the sh!!ting incident? (&ec!rd0 #age 1..10 "ine 12,
118. @!we'er0 he testiied that he w!u"d n!t ha'e wa"%ed !'er the du'et0
because the du'et was n!t !n the "!!r (&ec!rd0 #age 11510 "ines 13C18
and "ine 28,. @e reca""ed that the bedding had been !n the bed (&ec!rd0
#age 11550 "ine 5? #age 11520 "ines 2C11 and "ines 13C13 and #age
11.80 "ines 2C12,.
111. @e stated that the du'et was !n the bed and that he had in act m!'ed
the du'et t!wards the midd"e ! the bed (&ec!rd0 #age 11.30 "ines 1C.,.
@!we'er0 he a"s! testiied that !""!wing the sh!!ting incident0 he c!u"d
n!t remember whether the du'et was !n the bed (&ec!rd0 #age 1..10
"ines 12C2-,. /urtherm!re0 he c!nceded that when he g!t t! the bed
ater the sh!!ting0 there was n!thing !n the bed (&ec!rd0 #age 1..50
"ines 1.C12,.
115. It is submitted that the ai"ure ! the State t! ca"" <4O :!tha wh! was !n
the scene and c!u"d gi'e e'idence ab!ut the #!siti!n ! the du'et0
Austiies a negati'e inerence0 that he w!u"d n!t ha'e ad'anced the
State7s case. <4O :!tha was in the main bedr!!m. <hen C!"!ne" Dan
&ensburg "et0 he #r!bab"$ remained behind.
11.. This bec!mes m!re #r!minent i regard is had t! the Accused7s e'idence
that the aida'it ! <4O :!tha disc"!sed that the bedding was !n the
!ne side ! the bed. The bedding c!u"d !n"$ be the du'et (&ec!rd 18550
"ines 3C2,.
Page 151
112. <e dea"t with C!"!ne" 'an &ensburg and <4O Dan Staden7s unre"iab"e
e'idence0 re"e'ant t! wh! accessed the irst "!!r.
12-. The Accused c!nceded that certain as#ects ! his e'idence was n!t
entire"$ c!nsistent with ear"ier 'ersi!ns testiied t! b$ him0 when
c!m#ared t! the 'ersi!n ad'anced b$ him during the bai" a##"icati!n. @e
e9#"ained that he did n!t tai"!r his 'ersi!n during the tria" s! as t! render
it u""$ c!m#atib"e with his 'ersi!n during the bai" a##"icati!n0 des#ite him
ha'ing had the !##!rtunit$ ! d!ing s! (&ec!rd0 #age 18110 "ines 1.C23,.
121. In regard t! the Accused7s 'ersi!n ! the e'ents which un!"ded
subseBuent t! the Accused ha'ing discharged his irearm0 >r Ne"
submitted that:
ut that, as " said, Gr 9istorius, that what happened after the
shooting, apart from this piece of information we are exactly L
in fact happened.
(&ec!rd0 #age 123.0 "ines 1C3,.
And urtherm!re0
,s far as your version is concerned that you broke down the
door, that you picked her up and carried her down is not in
dispute and that is what your L There is very little improbability
because that in fact happened.
(&ec!rd0 #age 12320 "ines 2-C23,
Page 155
122. C!nseBuent"$0 the State d!es n!t dis#ute the Accused7s 'ersi!n ins!ar
as it re"ates t! the e'ents which un!"ded subseBuent t! the sh!!ting
incident.
123. >r Ne" ne'er as%ed the Accused i he w!u"d ha'e sh!t i he th!ught that
the *eceased might ha'e been in the t!i"et. The reas!n !r n!t as%ing is
c"ear0 >r Ne" %new that the Accused w!u"d n!t ha'e discharged his
irearm.
123. C"ear"$0 had he been a"erted t! the *eceased7s #resence in the t!i"et0 he
w!u"d n!t ha'e discharged the irearm (&ec!rd0 #age 11120 "ines 13C11,.
128. <hat is ! the utm!st im#!rtance is that:
128.1 he did n!t want t! sh!!t the *eceased?
128.2 he did n!t !resee !r rec!nci"e himse" with an$ #!ssibi"it$ that it
might ha'e been the *eceased in the t!i"et as he be"ie'ed that
she was in the bedr!!m?
128.3 the Accused7s ai"ure t! !resee and rec!nci"e himse" with the
#!ssibi"it$ that the *eceased was in the t!i"et is e'ident r!m his
insistence that the death ! the *eceased was an accident as he
be"ie'ed that she was in the bedr!!m and n!t in the t!i"et.
T@E S@OOTIN6
121. The !""!wing was testiied t! b$ the Accused0 with #articu"ar reerence t!
him ha'ing discharged the irearm:
Page 15.
121.1 The sh!!ting incident was an accident0 he sh!t in the be"ie that
an intruder4s was4were c!ming !ut t! attac% him (&ec!rd0 #age
18830 "ines 23C28,?
121.2 @e ne'er intended t! sh!!t an$!ne (&ec!rd0 #age 18880 "ines
1-C11,?
121.3 @e sh!t because he be"ie'ed s!me!ne was c!ming !ut t! attac%
him and he did n!t ha'e time t! thin% (&ec!rd0 #age 18810 "ines
2C12 and "ines 23C28? #age 18850 "ines 1C3 and #age 188.0 "ines
5C.,?
121.3 @e #u""ed the trigger when he heard the n!ise (&ec!rd0 #age
188.0 "ine 12,?
121.8 @e ired int! the t!i"et d!!r R (&ec!rd0 #age 181-0 "ines 8C5 and
"ines 12C22,?
121.1 @e did n!t #ur#!seu""$ ire sh!ts int! the d!!r (&ec!rd0 #age
18110 "ines 1C2,?
121.5 That0 whi"st he ac%n!w"edged ha'ing ired sh!ts at the t!i"et
d!!r0 he denied ha'ing d!ne s! de"iberate"$ (&ec!rd0 #age
18110 "ines 1C28 and #age 18120 "ines 1C5,?
121.. @e testiied that he ne'er aimed at the d!!r (&ec!rd 1.35 "ines
11C12,. The irearm was #!inted at the d!!r0 when he
discharged his irearm as he g!t a right (&ec!rd 1.3. "ines 22C
Page 152
23 and &ec!rd 1.53 "ines 1.C12,.
121.2 @e remembers #u""ing the trigger in Buic% successi!n0 h!we'er
he d!es n!t remember iring s#eciica""$ !ur sh!ts (&ec!rd0
1182 and 111-,?
121.1- @e fired before " could think. efore " even had a moment to
comprehend what was happening (&ec!rd0 #age 188.0 "ines 2C
3,?
121.11 " pulled the trigger at that moment when " heard the noise, " did
not have time to think about what was happening. (&ec!rd
188.0 "ines 12C21,
121.12 @e stated efore thinking, out of fear " fired the shots (&ec!rd0
#age 18820 "ines .C2,?
121.13 @e testiied that it was an accident0 in that he )discharged the
irearm in the be"ie that an intruder was c!ming !ut t! attac%
me+ (&ec!rd0 #age 18830 "ines 23C28,?
121.13 That the discharge ! the irearm was accidenta"0 he did n!t
intend t! discharge his irearm and that he was not meaning to
shoot anyone (&ec!rd0 #age 18880 "ines 22C23,?
121.18 @e shot because " was at that point with that L that split
moment " believed somebody was coming out to attack me, that
is what made me fire my L out of fear. " did not have time to
Page 1.-
think. " discharged my firearm (&ec!rd0 #age 18810 "ines 11C
12,?
121.11 /urther0 when as%ed t! e9#"ain what is meant b$ )accident+0 as it
was reerred t! in the #"ea e9#"anati!n0 the Accused answered
as !""!ws:
The accident was that " discharged my firearm in the belief that an
intruder was coming out to attack me, G!)ady. BBB .o the
discharge was not accidentalM Cr was the discharge
accidentalM BBB The discharge was accidental, Gy )ady. "
believed that somebody was coming out. " believed the
noise that " heard inside the toilet was somebody coming
out to attack me, or to take my life.(&ec!rd0 #age 18830 "ines
23C28 and #age 18880 "ines 1C3,
121.15 @e testiied that at n! stage was he read$ t! discharge his
irearm (&ec!rd 1511 "ines 12C21,0 but it was in a read$ m!de
(&ec!rd 1.3- "ines 13C18,?
121.1. @e c!nirmed that he had re"eased the saet$ mechanism !n the
irearm0 in case he needed t! use the irearm t! #r!tect himse"
(&ec!rd 1512 "ines 2C23,?
121.12 &es#!nding t! a Buesti!n as t! whether he c!nsci!us"$ #u""ed
the trigger0 he answered as !""!ws: " did not think about pulling
the trigger. ,s soon as " heard the noise before " could think, "
L pulled the trigger (&ec!rd0 #age 12380 "ines 1C2,.
Page 1.1
121.2- @e ne'er th!ught ! the #!ssibi"it$ that he c!u"d %i"" #e!#"e in the
t!i"et (&ec!rd 1.58 "ines 12C13,. @!we'er0 he c!nceded that
thin%ing bac% retr!s#ecti'e"$0 it w!u"d be a #r!babi"it$ that
s!me!ne c!u"d be %i""ed in the t!i"et (&ec!rd 1.58 "ines 18C21,?
121.21 @e testiied that i he wanted t! sh!!t the intruder0 he w!u"d
ha'e sh!t higher u# and m!re in the directi!n ! where the
!#ening ! the d!!r w!u"d be0 t! the ar right ! the d!!r and at
chest height (&ec!rd 1..1 "ines 11C12,.
125. <hi"st the Accused had in act a##r!ached the bathr!!m in a state !
readiness t! deend himse" and the *eceased against a #ercei'ed
threat0 he did n!t c!nsci!us"$ discharge his irearm in the directi!n ! the
t!i"et d!!r0 with the ensuing tragic resu"t. In sh!rt0 the c!nduct ! the
Accused and the death ! the *eceased is indeed an accident.
12.. The act that the Accused0 when he a##r!ached the t!i"et0 had the
intenti!n t! sh!!t t! #r!tect himse" and the *eceased0 d!es n!t im#"$
that the Accused intended t! sh!!t with!ut reas!n. I s!0 he w!u"d ha'e
discharged his irearm when he arri'ed at the entrance t! the bathr!!m.
122. /r!m the #ers#ecti'e ! 'iewing Pr!ess!rs *erman0 D!rster and
Sch!"tF7s e'idence as a wh!"e0 reerred t! hereinbe"!w0 it is res#ectu""$
submitted that the 'ersi!n ! the Accused as t! the circumstances which
#re'ai"ed b!th #ri!r t! and during the discharge ! his irearm came
ab!ut as a resu"t ! him ha'ing0 in a earu" and 'u"nerab"e state
discharged his irearm in re"e9 during the e#is!de ! an e9aggerated
Page 1.2
start"e res#!nse.
13-. <e dea" hereunder with:
13-.1 d!"us directus?
13-.2 d!"us e'entua"is?
13-.3 err!r in #ers!na?
13-.3 d!ctrine ! transerred ma"ice4intent
13-.8 ca#acit$?
13-.1 cu"#ab"e h!micide.
DOLUS DIRECTUS
131. The gist ! the Accused7s 'ersi!n is that he th!ught there was an intruder
(!r intruders, in the t!i"et behind the c"!sed t!i"et d!!r and #!ssib"$ an
intruder4s !n the "adder !utside the !#en bathr!!m wind!w.
132. @e did n!t %n!w that the *eceased was in the t!i"et as he be"ie'ed she
was in the bedr!!m. @e a"s! did n!t !resee the #!ssibi"it$ that it was
the *eceased in the t!i"et.
133. @e was scared as he be"ie'ed that the intruder4s c!u"d c!me !ut and
attac% them.
133. <hen he heard a n!ise resemb"ing a m!'ement inside the t!i"et0 he
inter#reted the n!ise at that s#"it sec!nd as the intruder4s c!ming !ut !
the t!i"et t! attac% them.
Page 1.3
138. :e!re thin%ing and !ut ! ear0 he discharged the sh!ts. @e did n!t
c!unt the sh!ts.
131. In discharging the sh!ts0 he did n!t (subAecti'e"$, rec!nci"e himse" with
the #!ssibi"it$ that it was the *eceased in the t!i"et.
135. The ab!'e 'ersi!n that he th!ught that it was an intruder in the t!i"et and
that he did n!t intend t! discharge the sh!ts at the *eceased is n!t a
recent abricati!n0 it was in act disc"!sed t! :
135.1 E!han Stander at -3:12 !n 13 /ebruar$ 2-13?
135.2 Carice Di"A!en sh!rt"$ ater -3:22 !n 13 /ebruar$ 2-13?
135.3 *r Sti## at ab!ut -3:28 !n 13 /ebruar$ 2-13?
135.3 the #!"ice at ab!ut -3:-- !n 13 /ebruar$ 2-13.
13.. It was a"s! disc"!sed in m!re detai" at the bai" a##"icati!n0 at a time when
the Accused did n!t ha'e access t! the statements in the #!"ice d!c%et
and the State had n!t at that time #resented its case in the bai"
a##"icati!n.
132. <e wi"" dea" hereunder with the Accused7s e'idence in re"ati!n t! his
a""eged direct intent t! %i"" the *eceased t! dem!nstrate that the
Accused did n!t want t! %i"" the *eceased.
13-. The State7s re"iance !n direct intent is #remised !n the a""eged
argument0 which a""eged"$ resu"ted in the *eceased "eeing t! the t!i"et
Page 1.3
and screaming an9i!us"$.
131. <e ha'e dem!nstrated ab!'e0 that the State did n!t #r!'e an a""eged
argument !r that it was the *eceased screaming. Sti"" "ess did it #r!'e
the e9istence ! the a""eged argument and a""eged screaming b$ the
*eceased as the !n"$ reas!nab"e inerence0 e9c"uding a"" !ther
inerences.
132. The Accused7s e'idence reutes an$ intenti!n t! %i"" the *eceased.
133. Ater adducing the e'idence ! a"" the State witnesses0 there is n!t an
i!ta ! e'idence as t! wh$ the Accused w!u"d ha'e wanted t! %i"" the
*eceased. On the c!ntrar$0 the e"ectr!nic c!mmunicati!ns between
them reute an$ m!ti'e t! %i"" the *eceased.
133. The #s$ch!metric testing and #s$ch!"!gica" e9aminati!n ! the Accused
b$ an inde#endent #s$ch!"!gist reutes an$ suggesti!n that the Accused
w!u"d0 because ! rage in an argument0 %i"" the *eceased.
138. @is a""eged intent t! %i"" is irrec!nci"ab"e with his 'ersi!n 'er$ sh!rt"$ ater
the sh!!ting0 that he th!ught it was an intruder (in the t!i"et,.
See: E!han Stander at -3:12
C Di"A!en at -3:22
*r Sti## at -3:23428
C!"!ne" 'an &ensburg at -3:88
@i"t!n :!tha at -8:--
131. The #r!babi"ities a"s! negate an$ suggesti!n that the Accused had
Page 1.8
wanted t! %i"" the *eceased.
135. I the Accused wanted t! %i"" the *eceased0 he w!u"d n!t ha'e been !n
his stum#s0 ha'ing remaining at the entrance t! the bathr!!m0 and
ha'ing ired !ur sh!ts at a re"ati'e"$ "!w "e'e" int! the bathr!!m d!!r. I
he had an intenti!n t! %i"" the *eceased0 it is m!re #r!bab"e that he
w!u"d stand right in r!nt ! the d!!r (ater being unab"e t! !#en it, and
ire sh!ts at a height which w!u"d be e9#ected t! be ata".
13.. Ater the sh!!ting the Accused w!u"d n!t0 at a time he be"ie'ed the
*eceased was sti"" a"i'e0 ta%e a"" #!ssib"e ste#s t! sa'e her "ie. (The
ca"" t! E!han Stander and 211 and the e'idence ! Carice Di"A!en and *r
Sti##,. :$ sa'ing her "ie0 she w!u"d ha'e been ab"e t! e9#!se his
a""eged murder!us acti!ns.
132. @is a""eged intenti!n t! %i"" is irrec!nci"ab"e with him sh!uting !r he"#
and screaming !n m!re than !ne !ccasi!n0 as i he was being attac%ed.
&ather0 his sh!uting and screaming be!re the sec!nd s!unds are
c!nsistent with him screaming and cr$ing !ut ater rea"ising it was the
*eceased in the t!i"et.
18-. @is a""eged intenti!na" %i""ing is irrec!nci"ab"e with his "!'ing re"ati!nshi#
with the *eceased0 his #ers!na"it$ (Pr!ess!r Sch!"tF, and his
#s$ch!metric testing (Pr!ess!r Sch!"tF,.
181. On the State7s 'ersi!n0 the *eceased must ha'e been in the t!i"et r!m
ab!ut -3:12 t! -3:15. I the Accused was threatening t! sh!!t her0 she
had am#"e time0 in the a##r!9imate i'e minutes:
Page 1.1
181.1 t! hide behind the wa"" ne9t t! the t!i"et?
181.2 use her ce"" #h!ne t! ca"" !r he"# !r send a message?
181.3 !#en the wind!w ! the t!i"et and ca"" !r he"#.
182. @er em#t$ b"adder is c!nsistent with s!me!ne wh! had '!ided her
b"adder 'er$ sh!rt"$ be!re her death (Pr!ess!r Saa$man0 &ec!rd 83.0
"ines 1C2,0 which is c!nsistent with the Accused7s 'ersi!n that she must
ha'e g!ne t! the t!i"et when he br!ught the ans in0 and thereater
c"!sed the s"iding d!!r and curtains.
183. Ca#tain >angena7s e'idence that the *eceased m!'ed t! assume a
seated #!siti!n !n the magaFine rac% ater the irst tw! sh!ts0 e'en i it
were t! be c!rrect0 d!es n!t assist the State in #r!'ing an intenti!n t!
%i""0 as the *eceased was behind a c"!sed t!i"et d!!r and the Accused
was #!siti!ned at the entrance t! the bathr!!m. @e c!u"d n!t ha'e
%n!wn what the *eceased7s #!siti!ning was in the t!i"et.
183. Ca#tain >angena ne'er used the magaFine rac% whi"st c!nducting his
tests0 as he did n!t ha'e access t! the magaFine rac%. (&ec!rd 1-220
"ines 11C18,.
188. <hen Ca#tain >angena was in'ited t! test the magaFine rac% in re"ati!n
t! the inAuries (as the magaFine rac% was n!t a'ai"ab"e t! him, he said
... " do not think " can do that now (&ec!rd 1-810 "ines 13C28? &ec!rd
1-850 "ines 5C11 and 1-1-0 "ines 13C15,.
Page 1.5
181. The *eceased c!u"d in an$ e'ent n!t ha'e m!'ed t! the bac% t!
assume a seated #!siti!n !n the magaFine rac%. Pr!ess!r Saa$man
testiied that the irst sh!t (which was agreed t! ha'e caused the inAur$ t!
the hi#, w!u"d ha'e been an inca#acitating inAur$ (&ec!rd0 *r Saa$man
8230 "ines 3C28 and &ec!rd 8230 "ines 1C2,. Pr!ess!r :!tha described
the inAur$ as !ne which w!u"d ha'e caused a 'irtua" c!""a#se ! the right
hi# and the *eceased w!u"d ha'e a""en ra#id"$ (&ec!rd 13880 "ine 280
13810 "ine 1,.
185. Ca#tain >angena Austiied his the!r$ ! the *eceased m!'ing bac% and
then sitting !n the magaFine rac% b$ testi$ing that the bu""et0 which hit
#!int E and ric!chet t! #!int /0 inAured the *eceased at tw! #"aces !n
her bac%0 whi"st she was in a seated #!siti!n !n the magaFine rac%
(&ec!rd0 1-3.0 "ines 2C1.,.
18.. It is n!t in dis#ute that:
18..1 the bu""et which im#acted at #!int E0 ric!chet t! #!int /?
18..2 that the !ther 3 bu""ets #enetrated the b!d$ ! the *eceased?
were acc!unted !r? and c!u"d n!t ha'e im#acted at )E+ and )/+
and c!u"d n!t ha'e caused an inAur$ !n the bac% ! the
*eceased.
182. <!"marans dem!nstrated c!nc"usi'e"$ that the bu""et (at E and /, c!u"d
n!t ha'e caused the inAuries !n the bac% ! the *eceased:
182.1 the bu""et !r its remains (the c!re,0 ater im#acting at E and
Page 1..
ric!cheting t! / was !und b$ <!"marans in the t!i"et b!w"
(E9hibit >>>0 &ec!rd <!"marans0 232.0 "ines 3C11,?
182.2 the s#ent bu""et c!re !und in the t!i"et b!w" c!u"d n!t ha'e
c!me r!m the !ther 3 bu""ets as <!"marans weighed 'irtua""$ a""
the ragments ! the s#ent bu""ets (the Aac%ets and c!res !und
at the scene, t! sh!w that the !ther three bu""ets were
acc!unted !r (<!"marans0 &e#!rt0 E9hibit >>>0 #ara 31.1,.
11-. <!"marans testiied that:
11-.1 the bu""et which im#acted at #!int E and ric!chet t! #!int /0
crac%ed 3 st!ne ti"es at #!int / (#h!t! 120 E9hibit >>>0 # 15,0
had s#ent a"" its energ$ ater im#acting at #!int /. C!nseBuent"$0
the s#ent bu""et w!u"d n!t ha'e had suicient energ$ t! cause
the tw! inAuries (&ec!rd0 2351,0 (&e#!rt0 <!"marans0 >>>0 #ar
35.1-,
11-.2 a#art r!m the act that the c!re ! the s#ent bu""et had
insuicient energ$ t! tra'e" r!m #!int / t! cause the inAuries !n
the bac% ! the *eceased0 that bu""et c!u"d in an$ e'ent n!t ha'e
caused the inAuries0 as in !rder t! ha'e d!ne s!0 that bu""et had
t! tra'e" d!wnwards and then turn u#wards t! cause the inAuries0
which was n!t #!ssib"e (&ec!rd0 .530 "ines 13C21,. This was
de#icted !n the s%etch b$ *i9!n0 t! i""ustrate what the traAect!r$
! the bu""et must ha'e been i Ca#tain >angena7s e'idence in
this regard was c!rrect0 i.e. t! ha'e tra'e""ed d!wnwards and
Page 1.2
then change directi!n u#wards. (&ec!rd0 *i9!n 12.2 C 1228,0
(S%etch0 *i9!n EEE0 2.33,
11-.3 the inAuries !n the bac% ! the *eceased were n!t c!nsistent
with ha'ing been caused b$ the c!re ! the s#ent bu""et0 !und
b$ him in the t!i"et b!w"?
11-.3 Pr!ess!r Saa$man testiied that the inAuries !n the bac% w!u"d
be c!nsistent with the *eceased ma%ing c!ntact with a b"unt
c!ntact surace0 i.e. an edge ! a chair !r an$thing ! that nature
!r caused b$ a missi"e0 which did n!t ha'e suicient energ$ t!
#enetrate the s%in (&ec!rd 8-30 "ines 1C1,.
11-.8 The magaFine rac% has edges0 as reerred t! b$ Pr!ess!r
Saa$man0 and the inAuries w!u"d c!rre"ate with the *eceased
a""ing bac%wards because ! the inAur$ t! her hi#. (Pr!ess!r
:!tha0 &ec!rd 13130 "ines 2C8,
111. <ith res#ect0 a"th!ugh Ca#tain >angena was in #rinci#"e a g!!d
witness0 he was wr!ng in the tw! res#ects raised ab!'e.
112. The State c!ntended that <!"marans7 e'idence was that the Accused
aimed with !ne ! his sh!ts. <!"marans did n!t sa$ that the Accused
aimed intenti!na""$ when he ired the !ne sh!t. @is e'idence in cr!ssC
e9aminati!n was that h!"e : sh!ws sight a"ignment (&ec!rd 23110 "ines
3C3,. @e a"s! said there was n! sight a"ignment (&ec!rd 2323 "ines .C
11,. N!ne ! the h!"es c!u"d in an$ e'ent dem!nstrate sight a"ignment
as ha'ing c!nstituted an aim.
Page 12-
113. @!we'er0 in rea"it$ n! #ers!n c!u"d sa$ with suicient certaint$ ("et a"!ne
be$!nd a reas!nab"e d!ubt, what ha##ened behind the c"!sed t!i"et
d!!r. It is a"s! n!t that re"e'ant which #r!Aecti"es made c!ntact0 and
which #r!Aecti"e missed0 as it is c!mm!n cause that the Accused w!u"d
n!t ha'e been ab"e t! see what was g!ing !n behind the c"!sed t!i"et
d!!r. In #articu"ar0 he w!u"d n!t ha'e %n!wn the *eceased7s "!cati!n in
the t!i"et !r in what #!siti!n she was. It must a"s! be b!rne in mind that
the Accused was n!t standing direct"$ in r!nt ! the t!i"et d!!r0 but rather
he was #!siti!ned at the entrance t! the bathr!!m.
113. Acc!rding"$0 Ca#tain >angena7s e'idence d!es n!t c!ntribute t! #r!'ing
!r dis#r!'ing dolus directus.
118. It is c"ear r!m the ab!'e that there is n! merit in the State7s c!ntenti!n
! direct intent? "et a"!ne that the e'idence #r!'ed direct intent as the
!n"$ reas!nab"e inerence e9c"uding a"" !ther inerences.
DOLUS EVENTUALIS
111. The Buesti!n is whether the Accused acted with dolus eventualis !r "ega"
intent in re"ati!n t! the death ! the *eceased.
115. In S 7 H03:B46=@
4
the Su#reme C!urt ! A##ea" (SCA, c!nirmed the
test !r dolus eventualis t! be :
4a7 <id the appellant sub$ectively foresee the possibility of the death
4of his passengers7 ensuing from his conduct8 and
23
2-13 (2, SAC& 1 (SCA, #ar 12
Page 121
4b7 did he reconcile himself with that possibility 4see eg . v <e
Cliveira 5006 4/7 .,&> 10 4,7 at 61i E $7M
11.. In H03:B46=@ the SCA dea"t with the irst "eg ! dolus eventualis as
!""!ws:
H56I Kor the first component of dolus eventualis it is not enough that the
appellant should 4ob$ectively7 have foreseen the possibility of fatal
in$uries to his passengers as a conse'uence of his conduct,
because the fictitious reasonable person in his position would have
foreseen those conse'uences. That would constitute negligence
and not dolus in any form. Cne should also avoid the flawed
process of deductive reasoning that, because the appellant should
have foreseen the conse'uences, it can be concluded that he did.
That would conflate the different tests for dolus and negligence.
4=mphasis added7
H51I This brings me to the second element of dolus eventualis, namely
that of reconciliation with the foreseen possibility. The import of this
element was explained by @ansen @, in . v #gubane 5031 467 .,
622 4,7 at 631, E ? in the following way(
%, man may foresee the possibility of harm and yet be negligent in
respect of that harm ensuing, eg by unreasonably underestimating
the degree of possibility or unreasonably failing to take steps to
avoid that possibility. . . . The concept of conscious 4advertent7
negligence 4luxuria7 is well known on the &ontinent and has in
recent times often been discussed by our writers. . . .
&onscious negligence is not to be e'uated with dolus eventualis.
The distinguishing feature of dolus eventualis is the volitional
component( the agent 4the perpetrator7 consents to the
conse'uence foreseen as a possibility, he reconciles himself to it,
he takes it into the bargain. . . . Cur cases often speak of the agent
being reckless of that conse'uence, but in this context it means
consenting, reconciling or taking into the bargain . . . and not the
recklessness of the ,nglo ,merican systems nor an aggravated
degree of negligence. "t is the particular, sub$ective, volitional
mental state in regard to the foreseen possibility which
characterises dolus eventualis and which is absent in luxuria.%
H56I The 'uestion is, therefore, whether it had been established that the
appellant reconciled himself with the conse'uences of his conduct
Page 122
which he sub$ectively foresaw. The court a 'uo held that he did.
ut " have difficulty with this finding. "t seems to me that the court a
'uo had been influenced by the confusion in terminology against
which @ansen @, sounded a note of caution in #gubane. That
much appears from the way in which the court formulated its
finding on this aspect, namely Q freely translated from ,frikaans
Q that the appellant, %appreciating the possibility of the
conse'uences nonetheless proceeded with his conduct, reckless
as to these conse'uences%.
H52I Cnce the second element of dolus eventualis is misunderstood as
the e'uivalent of recklessness in the sense of aggravated
negligence, a finding that this element had been established on the
facts of this case seems inevitable. y all accounts the appellant
was clearly reckless in the extreme. ut, as @ansen @, explained,
this is not what the second element entails. The true en'uiry under
this rubric is whether the appellant took the conse'uences that he
foresaw into the bargain8 whether it can be inferred that it was
immaterial to him whether these conse'uences would flow from his
actions. &onversely stated, the principle is that if it can reasonably
be inferred that the appellant may have thought that the possible
collision he sub$ectively foresaw would not actually occur, the
second element of dolus eventualis would not have been
established.
112. In S 7 T/1F<10
(
the SCA c!nirmed that the sec!nd "eg ! dolus
eventualis0 that the accused must ha'e rec!nci"ed himse" with the
!reseen #!ssibi"it$0 was again reerred t!. The SCA reiterated that the
sec!nd "eg is a"s! a subAecti'e a##"icati!n ! the Accused rec!nci"ing
himse". The SCA said the !""!wing in this regard:
H55I This statement, as " see it, potentially exposes the magistrate to
the criticism that, despite his express reference to the element of
reconciliation as an essential ingredient of dolus eventualis, he
never actually en'uired into the presence of that element at all. "n
conse'uence, he fell into the trap against which this court recently
reiterated a note of warning in . v ?umphreys /056 4/7 .,&> 5
4.&,7 paras 51 E 52. >econciliation, so this court emphasised in
?umphreys, involves more than the perpetrator merely proceeding
with his or her proposed conduct, despite the sub$ective
appreciation of the conse'uences that ensue. "f the perpetrator
genuinely believed Q despite the unreasonableness of that belief
28
2-13 (1, SAC& 8.3 (SCA, #ar 11
Page 123
Q that the foreseen conse'uences would not materialise, the
element of reconciliation cannot be said to be present. The form of
fault in this instance would be luxuria or conscious negligence, but
not dolus eventualis 4see eg . v #gubane 5031 467 ., 622 4,7 at
631, E ?7.
15-. In S 7 ND63?0
-
the C!urt stated:
"n modern .outh ,frican criminal law it is accepted as axiomatic
that before intention can exist there must be a sub$ective intention
to commit the offence concerned.
151. There!re the Buesti!n is:
151.1 *id the Accused subAecti'e"$ !resee that it c!u"d be the
*eceased in the t!i"et? and
151.2 N!twithstanding0 did he then ire the sh!ts0 thereb$ rec!nci"ing
himse" t! the #!ssibi"it$ that it c!u"d be the *eceased in the
t!i"et.
152. C"ear"$0 the acts sh!w that the Accused be"ie'ed that the *eceased was
in the bedr!!m. @e had in act t!"d her t! #h!ne the #!"ice and when he
was at the bathr!!m d!!r he sh!uted !r her t! ca"" the #!"ice.
153. Immediate"$ ater the sh!!ting he was "!!%ing !r the *eceased in the
bedr!!m. It was !n"$ then that he rea"ised the *eceased might ha'e
been in the t!i"et.
153. @is (subAecti'e, be"ie that the *eceased was in the bedr!!m and an
intruder(s, in the t!i"et0 is urther su##!rted b$ his s#!ntane!us
21
1222 (2, SAC& 181 (N, at 188 d
Page 123
disc"!sure0 'er$ s!!n ater the sh!!ting0 that he th!ught it was an
intruder (see the ca"" t! E!han Stander at -3:12 and the disc"!sure t!
Carice Di"A!en ( -3:22,0 *r Sti## at -3:28 and the P!"ice at -3:--.
158. @is 'ersi!n at the bai" a##"icati!n (be!re he had access t! the #!"ice
d!c%et0 and be!re he was #ri'$ t! the e'idence !n beha" ! the State at
the bai" a##"icati!n,0 was c!nsistent with his be"ie that the *eceased
was in the bedr!!m and an intruder(s, in the t!i"et.
151. It did n!t assist the State t! #ut t! the Accused in cr!ssCe9aminati!n that
it c!u"d ha'e been an$!ne in the t!i"et0 as in the c!nte9t ! the case0 that
anyone, in the Accused7s mind0 c!u"d n!t and did n!t inc"ude the
*eceased0 as his 'ersi!n remained unaected that he th!ught the
*eceased was in the bedr!!m.
155. Signiicant"$0 the State at n! stage as%ed him i he w!u"d ha'e
discharged the irearm0 i he th!ught it c!u"d #!ssib"$ ha'e been the
*eceased in the t!i"et0 as the State %new that the answer c!u"d !n"$
ha'e been a res!unding n!.
15.. There!re0 in a##"$ing the test ! dolus eventualis0 it c!u"d ne'er e'er be
suggested that the Accused !resaw the #!ssibi"it$ and rec!nci"ed
himse" with the #!ssibi"it$ that the *eceased c!u"d ha'e been in the
t!i"et.
152. The ai"ure t! !resee and4!r the ai"ure t! rec!nci"e !ne with the
!reseen #!ssibi"it$ ma$0 de#ending !n a"" the acts0 gi'e rise t! a
Page 128
#!ssib"e c!n'icti!n ! cu"#ab"e h!micide0 which we wi"" dea" with be"!w.
E44/4 <1 :64@/1?
1.-. In the summar$ ! substantia" acts in terms ! Secti!n 133(3,(a, ! the
CPA0 the State c!ntended:
The accused said to witnesses on the scene that he thought she
was an intruder. =ven then, the accused shot with the direct
intention to kill a person. ,n error in persona, will not affect, the
intention to kill a human being.
1.1. =rror in persona (mista%e ab!ut the identit$ ! the #ers!n, !n"$ inds
a##"icati!n where an accused intended t! %i"" the identiied specific
predetermined individual but made a mista%e as t! the identit$ ! that
indi'idua". @is mista%e wi"" n!t c!nstitute a deence.
1.2. )Err!r in #ers!na+ d!es n!t a##"$ t! the #resent case. &ather0 what the
State see%s t! d! is t! intr!duce the d!ctrine ! transerred intent4ma"ice0
which d!es n!t !rm #art ! !ur "aw. <e dea" with the d!ctrine !
transerred ma"ice4intent be"!w.
1.3. <e i""ustrate the ab!'e0 with reerence t! three e9am#"es:
EI?3:86 1
1.3.1 The m!ther ! a three $ear !"d "itt"e gir"0 her !n"$ chi"d0 heard a
n!ise in the h!use ear"$ !ne m!rning. @er husband was awa$
Page 121
!n business. She was a 'ictim ! a h!use r!bber$ ab!ut 1
m!nths be!re.
1.3.2 She armed herse" with her "icensed irearm and wa"%ed t! the
r!nt ! the h!use t! determine the cause ! the n!ise.
1.3.3 @er "itt"e gir"0 wh! s"e#t in the r!!m ne9t d!!r0 w!%e u# and went
t! her m!ther7s bedr!!m. She c"!sed the d!!r behind her.
1.3.3 The m!ther heard the main bedr!!m d!!r c"!sing and eared
that an intruder had entered her bedr!!m. She be"ie'ed her
daughter was sti"" as"ee# in her !wn bedr!!m.
1.3.8 She heard a n!ise inside the main bedr!!m and eared that the
intruder was c!ming !ut t! harm them. It had #re'i!us"$
ha##ened t! her in the h!use r!bber$.
1.3.1 She ired a sh!t int! the d!!r. Inbe%n!wn t! her0 her daughter
st!!d behind the d!!r. The sh!t ata""$ w!unded her daughter.
1.3. On the State7s re"iance !n err!r in #ers!na0 the m!ther is gui"t$ !
intenti!na""$ murdering her daughter as she wanted t! %i"" the intruder !r
!resaw and rec!nci"ed herse" that the intruder c!u"d be %i""ed.
Acc!rding t! the State0 it is irre"e'ant that she deinite"$ did n!t ha'e the
intenti!n t! %i"" her daughter and that she did n!t !resee !r rec!nci"e
herse" that her daughter was in the bedr!!m.
Page 125
1.8. It !ends against "ega" #rinci#"es0 !ur "ega" c!n'icti!n and c!mm!n
sense0 that in the absence ! intent t! %i"" her daughter0 the m!ther must
be c!n'icted ! murdering her daughter. (@er #!ssib"e neg"igence is
irre"e'ant in c!nsidering intenti!n !r #ur#!ses ! murder.,
EI?3:86
1.1. S wanted t! %i"" H. S %new that H reBuented a certain c"ub at ab!ut 1.:--
e'er$ Saturda$. S armed himse" and went t! the c"ub. @e saw a
#ers!n a##r!aching the entrance d!!r t! the c"ub. @e mista%en"$
identiied the #ers!n as H. @!we'er it was n!t H but K. @e ired the sh!t
with the intenti!n t! %i"" the #ers!n he had identiied as H. The sh!t is
ata".
1.5. @e is charged with the murder ! K.
1... In the sec!nd e9am#"e S7s intenti!n was directed at the 'er$ #ers!n he
mista%en"$ identiied and aimed at. @e was a"s! charged with the
murder ! that 'er$ #ers!n.
1.2. It d!es n!t !end the "ega" !r m!ra" c!n'icti!n that he be c!n'icted !
murder as he had the intenti!n t! %i"" the 'er$ #ers!n he had mista%en"$
identiied and sh!t at.
12-. It is !r e9act"$ this reas!n that Pr!ess!r :urche""
25
ma%es it c"ear that
err!r in persona a##"ies !n"$ when the intenti!n is directed at an
25
S!uth Arican Crimina" ;aw and Pr!cedure0 /!urth Editi!n0 at #age 312
Page 12.
identiied0 s#eciic #redetermined indi'idua".
121. Pr!ess!r >i"t!n
2.
c!nirms the 'iews e9#ressed ab!'e b$ stating that
the intent to kill must relate to the very person killed.
122. The Accused did n!t intend (in an$ !rm, t! %i"" the *eceased. @e did
n!t sh!!t at the *eceased mista%en"$ thin%ing she was the intruder.
@e did n!t sh!!t at the intruder mista%en"$ thin%ing he was the
*eceased.
123. C!nseBuent"$0 !ne must be careu" t! genera"ise reerences t! err!r in
persona in !rder t! see% t! a##"$ it t! instances !ther than where the
intenti!n was directed at an identiied0 s#eciic #ers!n !r the 'er$
#ers!n0 with wh!se death he is being charged.
EI?3:86 3
123. A intended t! %i"" :0 b$ iring a sh!t at :. The sh!t missed : and %i""ed C
wh! was tw! metres r!m : (aberratio ictus scenario7. A can !n"$ be
gui"t$ ! the murder ! C0 i he !resaw the #!ssibi"it$ ! C7s death when
he sh!t at :0 and he rec!nci"ed himse" with the !reseen #!ssibi"it$. @e
ma$ be gui"t$ ! cu"#ab"e h!micide0 i he ai"ed t! !resee C7s death !r
ai"ed t! rec!nci"e himse" with the !reseen #!ssibi"it$0 in circumstances
where C7s death was reas!nab"$ !reseeab"e.
22

128. The Accused:
2.
S!uth Arican Crimina" ;aw and Pr!cedure0 Third Editi!n0 at #age 323
22
:urche""0 supra, # 313
Page 122
128.1 did n!t direct his intenti!n at the *eceased0 thin%ing she was the
intruder.
128.2 @e had n! intenti!n t! sh!!t the *eceased as she was n!t the
s#eciic #redetermined indi'idua" wh!m he directed his sh!!ting
at.
128.3 @e did n!t !resee the #!ssibi"it$ that it c!u"d be the *eceased
in the t!i"et0 n!r did he rec!nci"e himse" with such a #!ssibi"it$.
128.3 @e did n!t intend t! sh!!t at the intruder0 in the t!i"et0 %n!wing
that the *eceased c!u"d be in the t!i"et0 and acce#ting
(rec!nci"ing, that his sh!t c!u"d %i"" the *eceased.
121. <hat the State is in rea"it$ attem#ting t! reintr!duce in !ur "aw is the
d!ctrine ! transerred ma"ice4intent which !rmed #art ! !ur "aw ab!ut
5- $ears ag!.
DOCTRINE OF TRANSFERRED MALICE/INTENT
125. The State7s argument is that e'en i the State did n!t #r!'e the
undamenta" reBuirement that the Accused subAecti'e"$ !resaw the
#!ssibi"it$ that the *eceased c!u"d be %i""ed0 he !ught sti"" t! be
c!n'icted ! murder in res#ect ! the *eceased.
12.. The ab!'e a##r!ach is a maniestati!n ! the d!ctrine ! transerred
intent4ma"ice0 which is #remised !n the d!ctrine ! versari in re illicita
60
0
3-
:urche""(su#ra, at 31- n. 31 The doctrine of versari in re illicito 4which had its origin in the
&anon )aw of the Giddle ,ges and provided that a person who committed an unlawful act
was criminally liable for all the conse'uences irrespective of mens rea in regard to the
Page 2--
which n! "!nger !rms #art ! !ur "aw.
122. <e sh!w hereunder that a"" the auth!ritati'e auth!rs !n crimina" "aw
(:urche""0 Sn$man0 and >i"t!n, reAect the d!ctrine ! transerred
ma"ice4intent. Their 'iews acc!rd with !ur case "aw.
5--. Sn$man0 Crimina" ;aw0 8
th
editi!n0 supra0 at 125 distinguishes between
the )transerred intenti!n+ a##r!ach and the )c!ncrete igure+ a##r!ach.
5-1. Sn$man #!ints !ut that the transerred intenti!n a##r!ach negates
intenti!n0 which is a reBuisite !r murder. On the !ther hand0 the
)c!ncrete igure+ a##r!ach0 reBuires intenti!n.
5-2. Sn$man reAects the )transerred intenti!n+ a##r!ach0 as n!t being #art !
!ur "aw and states as !""!ws in su##!rt ! the )c!ncrete igure+
a##r!ach:
"n order to determine whether N had the intention to kill :, the
'uestion is not simply whether he had the intention to kill a person,
but whether he had the intention to kill that particular concrete
figure which was actually struck by the blow. Cnly if this last
mentioned 'uestion is answered in the affirmative can one assume
that N had the intention in respect of :. ,ccording to this
approach, what is crucial is not an abstract intention to kill a
person but an intention to kill the actual concrete figure struck by
the blow.(Em#hasis su##"ied,
5-3. Sn$man #!ints !ut that the d!ctrine ! transerred intent am!unts t! an
a##"icati!n ! the d!ctrine ! versari in re illicita0 which is n! "!nger #art
! !ur "aw. @e a"s! #!ints !ut that the d!ctrine ! transerred intent
!riginated at a time in the hist!r$ ! Eng"ish ;aw which has n! urther
unlawful. conse'uences7 has now been conclusively re$ected in .outh ,frican law, see below
AA6B2
Page 2-1
a##"icati!n.
5-3. >i"t!n
31
at 323 states the !""!wing re"e'ant t! the ab!'e:
N!s intent to kill must relate to the very person killed. This does
not mean that N must know the identity of the intended victim. "t
means that cases of aberratio ictus are not murder, for our law
re$ects the doctrine of Rtransferred malice!8 if N shoots : intending
to kill him and not foreseeing the possibility that the shot may kill ;
instead, N has no intent to kill ;, and cannot be convicted of
murdering ;. "f in the situation N foresees that his bullet may kill ;
4notwithstanding that he has no desire, in the emotional sense, to
kill ;7 N has intent to kill ; and is guilty of murder.
5-8. :urche""
32
sa$s the !""!wing ab!ut the ab!'e:
"f the possibility of &!s death could not reasonably have been
foreseen, , would not be liable at all. "f , foresaw the death of &
as a real possibility, , would be guilty of the murder of & if he or
she accepted the risk into the bargain8 but if he or she did not
foresee that possibility, but the reasonable person would have
foreseen it, , would be guilty of culpable homicide.
5-1. And urther at 31-:
"t will be noticed that the sole 'uestion in these cases was
whether the ,ccused had actual intention or dolus eventualis in
31
S!uth Arican Crimina" ;aw and Pr!cedure0 3
rd
Editi!n0 supra
32
S!uth Arican Crimina" ;aw and Pr!cedure0 D!"ume 10 3
th
editi!n at 3-2 and 31-
Page 2-2
respect of the eventual result which was the sub$ect matter of the
charge.
5-5. In M2@B<E?0
33
@!"mes E A !und the sophistry of transferred malice is not
part of our law either as to conviction or in the matter of sentence.
5-.. In M2@B<E? 581 E @!"mes EA drew attenti!n t! the act that #re'i!us
decisi!ns such as *0EK?=/ and */E?, which he"d an accused "iab"e in
circumstances where the Accuse did n!t intend t! %i"" the s#eciic
deceased0 b$ transerring his !rigina" intent0 were decided be!re the
A##e""ate *i'isi!n had m!'ed awa$ r!m the !"d d!ctrine ! versari in re
illicita and be!re the A##e""ate *i'isi!n had ina""$ !rmu"ated the
#rinci#"e ! dolus eventualis in the !rm in which it is n!w a##"ied.
5-2. The Audgment ! @!"mes EA in S 7 M2@B<E?
34
was a##"ied in S 7
T<@@61
3(
and S 7 R?<@?
3-
. >!re!'er0 it seems t! ha'e been ina""$
acce#ted b$ the A##e""ate *i'isi!n in S 7 M?7B01D0
3)
9
51-. In S 7 M?7B01D0 the A##e""ate *i'isi!n a##r!'ed the Audgment !
@!"mes EA in S 7 M2@B<E?9 In M?7B01D0 the A##e""ant c!ns#ired with
!thers t! %i"" a s#eciic man but unbe%n!wn t! him a w!man was %i""ed
instead. The C!urt c!nirmed that t! be gui"t$ ! murder either in the
!rm ! dolus directus !r eventualis0 subAecti'e intenti!n was necessar$.
At 15 /C@ the C!urt stated as !""!ws:
33
1252- (3, SA 535 (A, at 583 @
33
125- (3, SA 535 (A,
38
1252 (3, SA 223 (T,
31
1252 (3, SA 831 (O,
35
12.1 (1, SA 81 A at 15 6C@
Page 2-3
)"n all those circumstances " do not think that the .tate proved that
appellant had the re'uisite dolus alternativus or indeterminatus,
either directus or eventualis, in respect of the deceased before or
at the time he was killed.
.trictly, this was not a true instance of aberratio ictus. ut, even if
the problem is regarded as being one of or analogous to aberratio
ictus as far as the appellant himself is concerned 4ie the mortal
blow that he intended #dou should direct at the motherBinBlaw
having been deflected to the deceased7, the conclusion is the
same for like reasons. The .tate did not prove the initial,
fundamental re'uirement that the appellant sub$ectively foresaw
the possibility that #dou, in carrying out the agreed common
purpose of killing the motherBinBlaw, would instead kill someone
else. .ee the $udgments of >-G9KK @, in . v #kombani and
,nother 5066 4A7 ., 322 4,7 at 332P B ? and of ?C)G=. @, in .
v GtshiDa 5020 467 ., 2A2 4,7 at 215< B 216,. ,lthough the
relevant dicta there appear in minority $udgments in the sense that
the other @udges concerned pursued different approaches, " think
that those dicta relating to aberratio ictus accord with modern
thought and the trend of recent decisions of this &ourt generally on
the need for the abovementioned sub$ective test to be always
satisfied before any accused can be convicted of murder 4see, for
example, <e +et and .wanepoel 4supra at 5A6 B 5A678 urchell
and ?unt 4supra at 5A5 B 5AA77. "n )ongone%s case supra 45063 ,<
16/7 the appellant supplied poison to , on his re'uest for the
purpose of murdering 4,%s wife7, but instead , murdered &. "n
the circumstances appellant was held not guilty of murdering &.
4<e +et and .wanepoel 4supra at 5AA7 regard this case as being
one of aberratio ictus.7 The decision directly supports the above
conclusion, a fortiori since in that case an ob$ective test, instead of
the now accepted, stricter, sub$ective test, was applied B see at 163
B 0.
(Em#hasis su##"ied,
511. <hat is c"ear r!m the a##r!ach !""!wed b$ the A##e""ate *i'isi!n in S 7
M?7B01D0 is that it is n!t necessar$ t! a##"$ !r c!nsider transerred
intent0 !n"$ in regard t! an aberratio ictus, but that a #ure subAecti'e
a##r!ach !r intenti!n sh!u"d be maintained as a #rereBuisite !r "iabi"it$.
512. In this matter0 the Accused did n!t intend t! %i"" the *eceased n!r did he
!resee the #!ssibi"it$ that she c!u"d be %i""ed. @e subAecti'e"$ be"ie'ed
Page 2-3
that she was in the bedr!!m when he discharged the sh!ts. @is acti!ns
and reacti!ns ater the sh!!ting c!nirmed his subAecti'e be"ie'e that the
*eceased was in the bedr!!m at the time.
C4<3<1?8 C?:?><2=
513. There is a urther reas!n wh$ the Accused cann!t be gui"t$ ! murder in
res#ect ! the *eceased. Crimina" Ca#acit$ is !ne ! the bui"ding b"!c%s
! crimina" "iabi"it$. &apacity means the capacity to appreciate the
wrongfulness of conduct 4cognitive function of the mind7 and the
capacity to act in accordance with that appreciation 4conative function of
the mind7
63
.
513. :urche"" dea"s with the c!gniti'e and c!nati'e acets ! crimina" ca#acit$
and sa$s the !""!wing ab!ut crimina" ca#acit$:
32
513.1 The first part of this test of capacity pertains to the cognitive
functions of the accused!s mindB his or her capacity to
appreciate the wrongfulness of his or her conduct. This en'uiry
is sub$ective. Kactors such as youthfulness, mental illness,
intoxication, ignorance, lack of education, illiteracy or even
superstitious belief on the part of the accused may affect his or
her perception, appreciation or knowledge and may, therefore,
be relevant to the determination of his or her liability.
513.2 The c!nati'e acet ! ca#acit$ is subAecti'e in the sense that it
3.
:urche"" 4supra7 at # 81
32
#age 333 and 338
Page 2-8
allows the court to take into account that the accused may have
lacked the capacity to control his or her conduct as a result of
any sub$ective factor relevant to the first part of the capacity
en'uiry 4except provocation or emotional stress as regulated
under the =adie rule7.
518. Ca#acit$0 !r inca#acit$ in this regard must n!t be c!nused with an
inca#acit$ as a c!nseBuence ! a menta" dis!rder !r deect0 as
en'isaged in Secti!n 5.(1, ! the CPA.
511. In S 7 E?5<6
4!
the Su#reme C!urt ! A##ea" dea"t with #r!'!cati!n0 but
a"s! reerred t! n!nC#ath!"!gica" inca#acit$ !r an inca#acit$ n!t caused
b$ a menta" dis!rder !r menta" deect. The SCA a"s! dea"t with th!se
instances where an accused was unab"e t! e9ercise c!ntr!" !'er his
m!'ements.
31
515. The SCA dea"t with the 'iew e9#ressed that '!"untar$ c!nduct must be
regarded as c!nduct c!ntr!""ed b$ the accused7s c!nsci!us wi"" and
!und 4"7n my view the insistence that one should see an involuntary act
unconnected to the mental element in order to maintain a more scientific
approach to the law, is with respect an overBrefinement
A/
51.. The SCA thus !und that it was #!ssib"e t! retain the abi"it$ t! distinguish
between right and wr!ng $et "!se the abi"it$ t! c!ntr!" !ne7s acti!ns
acc!rding"$.
33
3-
2--2 (1, SAC& 113 (SCA,
31
at #ar 85
32
#ar 8.
33
#ar 82
Page 2-1
512. In cases ! such inabi"it$0 an accused w!u"d be ab"e t! distinguish
between right and wr!ng0 but w!u"d be unab"e t! act in acc!rdance with
his a##reciati!n ! a distincti!n between right and wr!ng.
52-. The SCA !und that :
)+hen an accused acts in an aggressive goalBdirected and
focused manner, spurred on by anger or some other emotion,
whilst still able to appreciate the difference between right and
wrong and while still able to direct and control his actions, it
stretches credulity when he then claims, after assaulting or killing
someone, that at some stage during the directed and planned
manoeuvre he lost his ability to control his actions.
4=mphasis added7
521. <hat is c"ear r!m the ab!'e is that ca#acit$ c!nsists ! an a##reciati!n
between right and wr!ng and an abi"it$ t! act in acc!rdance with such
a##reciati!n.
522. <hen the Buesti!n (!r deence, ! inca#acit$ is c!nsidered0 the
a##r!ach as t! the e9istence ! inca#acit$ is subAecti'e0 but the C!urt is
entit"ed t! test the 'eracit$ ! the deence against the C!urt7s e9#erience
! human beha'i!ur and s!cia" interacti!n.
33
33
Eadie0 #ara 13 and 18.
H6AI " agree that the greater part of the problem lies in the misapplication of the
test. 9art of the problem appears to me to be a tooBready acceptance of
the accused%s ipse dixit concerning his state of mind. "t appears to me to be
$ustified to test the accused%s evidence about his state of mind, not only
against his prior and subse'uent conduct but also against the court%s
experience of human behaviour and social interaction. &ritics may describe
this as principal yielding to policy. "n my view it is an acceptable method for
testing the veracity of an accused%s evidence about his state of mind and
as a necessary brake to prevent unwarranted extensions of the defence.
The *ensley and ?enry cases adopted this approach.
H61I To maintain the confidence of the community in our system of $ustice the
approach of this &ourt, established over almost two decades and
Page 2-5
523. <e wi"" dem!nstrate be"!w that a c!ns#ectus ! Pr!ess!r *erman0
Pr!ess!r D!rster and Pr!ess!r Sch!"tF7 e'idence sh!w that the
Accused "ac%ed the c!nati'e acet ! ca#acit$. A"th!ugh he was g!a"
directed and c!u"d distinguish between right and wr!ng0 at the critica"
m!ment immediate"$ be!re and at the sh!!ting0 he did n!t act
'!"untari"$ in the sense that he acted as a resu"t ! an increased start"e
re"e90 which had the c!nseBuence that he did n!t act in acc!rdance with
his a##reciati!n ! right and wr!ng. The re"e9 ma$ arguab"$ im#act !n
the actus reus !r act.
523. *r *erman7s e'idence0 read in c!nAuncti!n with the e'idence !
Pr!ess!r D!rster and Pr!ess!r Sch!"tF dem!nstrated the cause and
c!nseBuence ! the start"e res#!nse. @e e9#"ained this as !""!ws:
523.1 The h$#!tha"amus0 is #art ! the ancient midbrain. Certain
regi!ns ! the h$#!tha"amus are critica" !r a ight ! "ight
res#!nse t! an imminent threat !r #ercei'ed imminent threat.
(&ec!rd0 2.-20 "ines 15C23? &ec!rd 2.-30 "ines 11C21,.
523.2 <hen there is a threatening stimu"us0 which can be audit!r$ !r
'isua"0 it creates a start"e. (&ec!rd 2.-.0 "ines 2C5, (I this
!ccurs in e9#eriments0 where a ear state is induced0 it is
reerred t! as a fear potentiated startle.
described earlier in this $udgment, should be applied consistently. &ourts
should bear in mind that the phenomenon of sane people temporarily
losing cognitive control, due to a combination of emotional stress and
provocation, resulting in automatic behaviour, is rare. "t is predictable that
accused persons will in numbers continue to persist that their cases meet
the test for nonBpathological criminal incapacity. The law, if properly and
consistently applied, will determine whether that claim is $ustified.
Page 2-.
523.3 The start"e is the initia" re"e9i'e #h$si!"!gica" reacti!n4stimu"us
which triggers the am$gda"a (&ec!rd 2.-.0 "ines 2C3,.
523.3 The am$gda"a has c!nnecti!ns t! the h$#!tha"amus0 and is the
area ! the brain that acti'ates the ight !r "ight res#!nse
(&ec!rd 2.-30 "ines 11C12,.
523.8 The start"e is the immediate re"e9i'e #h$si!"!gica" res#!nse and
a #hen!men!n that a #ers!n d!es n!t ha'e c!ntr!" !'er (&ec!rd
2.-20 "ines 21C23? &ec!rd 2.-30 "ines 8C1,.
523.1 A ight !r "ight res#!nse t! a #ercei'ed threat is a re"e9i'e
#hen!men!n ! the ner'!us s$stem triggered b$ the start"e
stimu"us 'ia the am$gda"a (&ec!rd 2.-20 "ines 21C23.
523.5 As the start"e and the ight !r "ight res#!nse are re"e9i'e
#h$si!"!gica" reacti!ns0 the$ w!u"d be 'irtua""$ instantane!us
and 'irtua""$ simu"tane!us0 a"th!ugh the start"e triggers the
am$gda"a which triggers the ight !r "ight res#!nse.
523.. The start"e triggers the ight res#!nse and because b!th are
instantane!us and re"e9i'e and 'irtua""$ simu"tane!us it w!u"d
n!t be #!ssib"e t! ca"cu"ate !r determine the m!mentar$ time
inter'a" between the start"e and the ight res#!nse. @!we'er0
the re"e9i'e eects ! the start"e and ight res#!nse wi""
ine'itab"e !'er"a#.
523.2 >r Ne" #!sed the Buesti!n )if there is a startle and " act on the
Page 2-2
startle, are you saying that my action be 4sic7 automatic,
whatever " choose. Cr would " be able to think how " am going to
deal with the startleM+ Pr!ess!r *erman re#"ied )#o, your startle
is automatic+ (&ec!rd 2.53 "ine 8C.,.
523.1- <hen the start"e !ccurs and the "ight !r ight res#!nse ensues0
there is decreased thin%ing due t! inhibiti!n ! the brain thr!ugh
the hi##!cam#us0 as we"" as "ess b"!!d "!w t! that area ! the
brain0 with the resu"t that the uncti!ning ! the brain is inhibited
and the thin%ing brain is inhibited. (&ec!rd 2.530 "ines 13C1.,.
523.11 The res#!nse triggered b$ the start"e is a reeFe0 !r a ight !r
"ight res#!nse (&ec!rd 2.110 "ines 1C1-,. There!re0 the start"e
is the initia" stimu"us and the ight !r "ight res#!nse is the
immediate res#!nse t! the start"e stimu"us (&ec!rd 255.0 "ines
1C13,.
523.12 As the ight !r "ight res#!nse is an immediate subseBuent
reacti!n t! the start"e0 the res#!nse e'entuates at a time when
the thin%ing brain is inhibited. As the b"!!d "!w returns the
inhibiti!n dissi#ates gradua""$. It is n!t #!ssib"e t! determine the
time #eri!d ! dissi#ati!n.
523.13 /actua""$0 the initia" immediate ight !r "ight res#!nse is re"e9i'e.
A reeFe is a g!!d e9am#"e. A #ers!n reeFes instantane!us"$
as a t$#ica" res#!nse !""!wing a start"e. As the reeFing is
re"e9i'e it is n!t c!ntr!""ed b$ ca"cu"ated c!gniti'e thin%ing. It is
Page 21-
n!t #!ssib"e t! determine the time it wi"" ta%e !r a #ers!n t!
c!me !ut ! a reeFe0 i.e. !r the re"e9i'e res#!nse t! dissi#ate.
523.13 The ight res#!nse is a re"e9i'e res#!nse. It is n!t #!ssib"e t!
determine when the re"e9i'e ight res#!nse wi"" dissi#ate. It
dissi#ates when the #ercei'ed threat is !'er. The re"e9i'e ight
res#!nse wi"" trigger the !""!wCu# acti!ns b$ a #ers!n u# t! a
#!int when the b"!!d "!w has returned t! n!rma".
523.18 /urtherm!re0 Pr!ess!r *erman e9#"ained the ab!'e
#h$si!"!gica" res#!nse as being0 when the stimu"us !ccurs0 the
eect it has !n the hi##!cam#a" #reCr!nta" medu""a c!rte9 tract
and !ther #arts ! the brain is that the uncti!ning ! the brain is
inhibited and the thin%ing brain st!#s. C!nseBuent"$0 when a
"ight and ight %ic%s in0 "ess b"!!d "!w t! the thin%ing brain
!ccurs and c!nseBuent"$ "ess thin%ing !ccurs at that time
(&ec!rd 2.53 "ine 3C.,.
528. The ab!'e dem!nstrates that:
528.1 The re"e9i'e im#act ! the start"e is 'er$ transient. I the
sh!!ting !ccurred within the re"e9i'e state ! the start"e0 and the
ight res#!nse. The sh!!ting wi"" be in'!"untar$ in the sense that
the Accused ma$ n!t ha'e the c!gniti'e and4!r c!nati'e ca#acit$
!r the abi"it$ t! act.
528.2 The c!gniti'e im#airment ! the uncti!ning ! the brain at the
!nset ! a ight res#!nse0 is at its greatest. I the sh!!ting
Page 211
!ccurred within that #eri!d ! c!gniti'e im#airment0 the Accused
ma$ n!t ha'e the c!gniti'e and4!r c!nati'e ca#acit$ !r the abi"it$
t! act.
521. It is in this regard that the #ecu"iar circumstances ! the Accused must
be c!nsidered t! determine whether !r n!t he had a start"e and a ight !r
"ight !r reeFe res#!nse and whether he had the necessar$ crimina"
ca#acit$ at the time ! the sh!!ting.
525. Pr!ess!r *erman reerred t! research sh!wing that indi'idua"
dierences in the structura" integrit$ ! the am$gda"a ! the subC
c!nsci!us brain and #reCr!nta" !r c!nsci!us #athwa$s were re"ated t!
trait an9iet$. Thus0 #e!#"e with high trait an9iet$ ha'e "ess c!rtica" !r
c!nsci!us brain m!du"ati!n abi"it$ !'er their am$gda"a during earu"
situati!ns (&ec!rd 2.-5 "ine 21C23,?
52.. The stimu"us4start"e (in his case the s!und, is increased !r m!re
#r!n!unced in #ers!ns wh! #resent with an9iet$. (&ec!rd 2.-.0 "ines
2-C21,. @e testiied that : "t is further held that evidence is presented
showing that anxious patients are overly sensitive to threatening
context. And urther Kear potentiated startle but not baseline startle
differed in the low and high fear sub$ects. The magnitude of the fear
potentiated startle was larger in the high fear group, as compared with
the low fear group. (&ec!rd 2.-.0 "ines 2-C23,
522. C!nseBuent"$0 Pr!ess!r *erman !#ined that the higher the degree !
ear being e9#erienced b$ a #articu"ar indi'idua"0 the m!re #r!n!unced
Page 212
the re"ecti'e e9aggerated start"e and ight !r "ight res#!nse w!u"d be
(&ec!rd0 #age 2.-50 "ines 23C23? #age 2.-.0 "ines 1C8 and "ines 1.C21
and #age 2.1-0 "ines 3C1,.
53-. Pr!ess!r *erman7s e'idence was that due t! the Accused7s disabi"it$0
the s"!w burn eect ! his disabi"it$0 his 'u"nerabi"it$0 as we"" as his
an9iet$0 his re"e9i'e start"e and ight res#!nse w!u"d be e9aggerated
and that the Accused indeed #resented with an e9cessi'e start"e
res#!nse. (&ec!rd 25520 "ines 8C1,.
531. It is res#ectu""$ submitted that the Accused #resented with s$m#t!ms !
'u"nerabi"it$ n!t !n"$ because ! his disabi"it$ and the eects there!0 but
a"s! as a c!nseBuence ! his e9#eriences ! incidents ! crime0 and h!w
he be"ie'es crimina" acts ma$ negati'e"$ im#act u#!n him.
532. Pr!ess!r *erman testiied that the Accused #resents with an9iet$0
c!u#"ed with ear which resu"ted in a signiicant ight and "ight res#!nse.
@e is a"s! h$#erC'igi"ant0 has an e9aggerated start"e res#!nse0 and is
h$#er sensiti'e t! s!und. /urtherm!re0 besides his disabi"it$0 he has a
"ietime ! rea" and "earnt 'u"nerabi"it$ as a c!nseBuence ! his disabi"it$.
@e has e9#erienced mu"ti#"e traumatic e'ents and "!sses in his ear"$
"ie.+ &ec!rd 2.32 "ines 2C12 and E9hibit KKK2 #ar 8-,
533. Pr!ess!r D!rster stated that a act!r c!m#!unding the Accused7s
an9iet$ w!u"d be his ear ! crime in S!uth Arica(&ec!rd 2818 "ines 1C
3,.
533. Pr!ess!r *erman c!nirmed that the Accused7s earu"ness has been
Page 213
#resent since chi"dh!!d0 with e#is!des in'!"'ing his m!ther and
#erce#ti!ns ! his ami"$ being 'ictims ! crime (E9hibit KKK2 #ar 81,.
538. Pr!ess!r Sch!"tF re#!rted as !""!ws: Gr 9istorius! appraisal of a
situation is that he might be physically threatened, a fear response
follows, which might seem extraordinary when viewed from the
perspective of an able bodied person but normal in the context of a
disabled person with his history.
531. &es#!nding t! a Buesti!n as t! whether his ath"etic start training c!u"d
"ead t! a #ers!n e9#!sed theret! bec!ming conditioned0 Pr!ess!r
*erman res#!nded as !""!ws: ;es, it does give rise to reaction, in fact,
one is teaching the athletes to be highly aware and vigilant during that
time in order to then respond to the gunshot or to the sound that induces
the start response and urther0 res#!nding t! a Buesti!n as t! whether
such conditioning c!u"d be ana"!g!us t! the acts ! this matter (the
sh!!ting incident,0 Pr!ess!r *erman res#!nded as !""!ws: Kor the
common denominator in both situations is a sound which triggers the
startle response, that is all " can say about that.
535. /urther0 Pr!ess!r *erman testiied: )@is training !r ath"etics needs t!
be c!nsidered as he is #rimed during start training t! react t! an audit!r$
stimu"us0 which "eads t! a #h$si!"!gica" res#!nse. Indeed0 ath"etic
c!aches use gunsh!ts and4!r a "!ud c"a# ! the hands during training t!
e"icit a start"e res#!nse0 which engages the ath"ete t! #er!rm. Such
training is re#eated time and time and time again and the ath"ete is
taught n!t t! antici#ate but t! react.+
Page 213
53.. Pr!ess!r *erman a"s! testiied that0 Kurthermore, this incident
occurred during the early hours of the morning and in a very dark
setting, both of which factors potentiate the startle response., and, that
the startle reflex is accentuated in the dark. This has been sh!wn
c!nc"usi'e"$ in a scientiic stud$0 which stud$ as inc"uded in E9hibit
KKK.2.
532. Pr!ess!r *erman0 in arri'ing at his c!nc"usi!n0 testiied that:
physiological responses under stressful conditions, all of which render it
probable that his version, having experienced auditory stimuli, which he
perceived to be life threatening to both himself and Gs .teenkamp,
resulted in a significant startle and the flight and fight response, as he is
not able to flee, due to his disability, his fight response dominates his
behaviour, as it has in the past, and he approaches the perceived
danger. Kurther sounds then lead to further potentiated startles and in
the setting of the complexities mentioned above, resulted in an
exaggerated fight response, which culminated in this horrific tragedy.
(&ec!rd 2.35 "ine 11C23,.
53-. Pr!ess!r *erman7s e'idence that when the Accused armed himse" he
had the intenti!n t! %i"" means in the c!nte9t ! his e'idence that it was in
reacti!n t! a ight res#!nse. That intenti!n is n!t t! un"awu""$ %i""0 but t!
#ut himse" in a #!siti!n t! deend himse" and the *eceased.
531. <hether the intenti!n wi"" maniest w!u"d de#end i the circumstances
necessitated a sh!!ting. This is e'ident in the Accused7s e'idence that
he:
Page 218
531.1 sh!uted !r the intruderOs t! "ea'e the h!use?
531.2 did n!t sim#"$ discharge sh!ts int! the t!i"et d!!r when he
arri'ed at the entrance t! the bathr!!m.
532. Neither the e'idence ! Pr!ess!r D!rster0 n!r *erman was dis#uted b$
the State0 and the State did n!t e"ect t! cr!ssCe9amine Pr!ess!r
Sch!"tF. The ai"ure t! cr!ssCe9amine !r t! #resent (e9#ert, e'idence t!
the c!ntrar$0 has the c!nseBuence that the e'idence ! Pr!ess!r
Sch!"tF0 as reerred t! ab!'e0 remains c!gent.
533. The Accused7s e'idence is that he heard the irst s!und in his 'u"nerab"e
and earu" state and r!Fe. It acc!unts !r the irst signiicant !r
increased start"e and reeFe res#!nse.
533. The reeFe res#!nse was !""!wed b$ a ight res#!nse0 as the Accused
did n!t ha'e a rea" !#ti!n ! "ight.
538. Pr!ess!r Sch!"tF a"s! c!mmented as !""!ws: ?e would also
investigate if he thought there was something strange or curious, a go
to rather than get away from approach.
531. Pr!ess!r *erman0 u#!n being as%ed t! e9#"ain the an!ma"$ (that
des#ite the e9istence ! a 'u"nerabi"it$0 !n the #art ! the Accused0 he
ne'erthe"ess a##r!ached the #ercei'ed danger,0 re#"ied that0 such
a##r!ach ater a start"e ! the %ind e9#erienced b$ the Accused0 is
c!nsistent with the "ight and ight res#!nse. (&ec!rd 2.15 "ines 2C11,
Page 211
535. Pr!ess!r *erman urther testiied that0 )>r Pist!rius7 signiicant
disabi"it$0 when he is "et with!ut the beneit ! his #r!stheses0 d!es n!t
a""!w him suicient m!bi"it$ t! ba"ance !r #r!tect himse" and ta%e "ight+
(&ec!rd 2.22 "ines 18C1.0 E9hibit KKK2 at #ar 32,.
53.. Pr!ess!r *erman said that "eeing was n!t an !#ti!n a'ai"ab"e0 as the
indi'idua" d!es n!t ha'e "!wer "egs. There!re0 when !ne inds !nese"
with!ut the abi"it$ t! "ee0 the !ther !#ti!n is t! ight. Thus0 Pr!ess!r
*erman !#ined that the a##r!ach t!wards danger is an understandab"e
#h$si!"!gica" #hen!men!n (&ec!rd 2.12 "ines 1C1,.
532. On the wa$ t! the bathr!!m there was a urther s!und start"e (i.e. the
s"amming ! the d!!r,0 which w!u"d ha'e triggered a ight res#!nse.
58-. The e'idence ! Pr!ess!r *erman was that he be"ie'ed that the sec!nd
s!und that !ccurred0 (being the s"amming ! the d!!r,0 was the ac!ustic
stimu"us !r the sec!nd start"e (&ec!rd 221- "ines 2-C22 and &ec!rd
2211 "ines 3C8,.
581. The signiicance ! this start"e is that it caused the eect ! the initia"
"ight res#!nse t! either remain !r t! be stimu"ated again !r b!th.
582. <hen the Accused #!inted his irearm at the d!!r0 the third s!und start"e
!ccurred (the m!'ement inter#reted b$ him as the intruder4s c!ming !ut
! the t!i"et,.At this #!int in time he was in a heightened state ! ear
(&ec!rd0 221. "ines 1.C12 and &ec!rd 22120 "ines 18C11,.
583. The third start"e "ed t! a re"e9i'e ight res#!nse as is c"ear r!m his
Page 215
e'idence reerred t! ab!'e. As stated ab!'e0 b!th res#!nses are
re"e9i'e0 instantane!us and #rinci#a""$ simu"tane!us.
583. Pr!ess!r *erman em#hasised that0 when the am$gda"a is triggered0
)speed is what the amygdala uses at the expense of accuracy+. The
res#!nse is aut!matic and it is immediate (&ec!rd 2288 "ine 8C1.?
&ec!rd 2281 "ine 15C12,.
588. Pr!ess!r *erman e9#"ained that i there is the e9#ectati!n ! a s!und0
then such #ers!n is in c!ntr!" ! that s!und and the start"e res#!nse is
n!t the same as s!me!ne7s res#!nse t! an une9#ected s!und (&ec!rd
2252 "ine 12C21,. A #ers!n acting in a earu" state0 w!u"d e9hibit an
e9aggerated earC#!tentiated start"e (&ec!rd 2253 "ine 1-C12? &ec!rd
2258 "ine 1C3,.
581. >r Ne" as%ed the Accused whether0 ater ha'ing heard the n!ise
emanating r!m inside the t!i"et0 he wanted t! sh!!t the #ers!n c!ming
!ut. The Accused res#!nded that he did n!t want t! sh!!t them0 that he
g!t a right and did n!t ha'e time t! thin% (&ec!rd 1.3. "ines 15C28,.
The Accused c!nirmed that at the time when he discharged the irearm0
he did n!t thin% (&ec!rd 1.32 "ines 1C8,.
585. >r Ne" #ut the !""!wing t! the Accused: )H!u see0 )I was n!t thin%ing+ is
n!t g!!d !r $!u0 >r Pist!rius. )I was n!t thin%ing+0 is s! rec%"ess0 at
"east I was n!t thin%ing0 I Aust ired+ (&ec!rd 1.12 "ines 8C5,.
58.. Pr!ess!r *erman testiied that the reerence t! )thin%ing+ reers t! the
new brain0 the ne!Cc!rte90 where e9ecuti'e uncti!n and thin%ing ta%es
Page 21.
#"ace0 and that what we %n!w r!m science is that when the "ight and
ight res#!nse %ic%s in0 there is decreased c!rtica" acti'ati!n and then
there is "ess c!rtica" in#ut int! the uncti!n that ensues with the "ight and
ight res#!nse (&ec!rd 2.1. "ines 1C21,.
582. In arri'ing at a inding that the Accused had an e9aggerated start"e and
ight res#!nse0 Pr!ess!r *erman e9#"ained that the Accused in!rmed
him that at the time ! the e'ent0 a"" his musc"es were tense0 he was
sweating and he was incredib"$ scared. Such #h$si!"!gica" res#!nse is
c!nsistent with a inding that the Accused indeed had an e9aggerated
start"e and ight res#!nse (&ec!rd 2.22 "ine 2-C2? &ec!rd 22-2 "ine 1C.
and 13C18,.
51-. The re"e9i'e res#!nse 4 reacti!n ! the 'u"nerab"e disab"ed Accused
im#acted !n his inca#acit$ t! act in acc!rdance with his a##reciati!n !
right and wr!ng !r #!ssib"$ !n his abi"it$ t! act and caused the discharge
! the irearm.
511. In cr!ssCe9aminati!n0 >r Ne"0 #ut it t! Pr!ess!r *erman ?is last action
of shooting and killing the <eceased would be outside the domain of the
fight response. *erman re#"ied " cannot conclude that, G!)ady.
ecause how do we know that. Cne would need to know that the fear
and the whole sympathetic nervous system was withdrawn at that point
in time. (&ec!rd 2.2- "ine 13C15,.
512. >r Ne" attem#ted t! draw a time "ine between the start"e and the ight
res#!nse which is n!t #!ssib"e as e9#"ained ab!'e0 as the$ are
Page 212
instantane!us and 'irtua""$ simu"tane!us and their eects !'er"a#.
513. The increased start"e and ight res#!nse Austi$ the #r!bab"e inerence
that the sh!!ting was re"e9i'e and0 acc!rding"$0 that he did n!t ha'e the
necessar$ crimina" ca#acit$.
513. E'en i the inerence ! inca#acit$ is n!t #r!bab"e0 but !n"$ reas!nab"$
#!ssib"e0 the deence !ught t! be u#he"d as the !nus t! #r!'e ca#acit$
is !n the State.
38
518. A #r!#er basis was "aid !r the deence and the State did n!t #resent an$
e'idence t! reute the deence.
31
511. The #resum#ti!n ! sanit$ d!es n!t assist the State as the deence !
inca#acit$ in this matter has n! re"e'ance t! insanit$ !r a menta"
dis!rder !r menta" deect.
35
515. It is understandab"e that a C!urt w!u"d be "!ath t! acce#t a deence !
inca#acit$ in genera"0 #articu"ar"$ where the #ers!n in'!"'ed has n!
%n!wn im#ediments and disabi"ities.
51.. @!we'er e'er$ case must be decided !n its !wn merits !r as the SCA
#ut it in E?5<6 "t is predictable that accused persons will in numbers
continue to persist that their cases meet the test for nonBpathological
criminal incapacity. The law, if properly and consistently applied, will
38
S 7 R<23?11 1222 (2, SAC& 11- N>@C. See a"s! *u T!it et al( &ommentary on the
&riminal 9rocedure ,ct #. 13C5
31
S 7 %<<5 122- (1, SAC& 81- (A,
35
S 7 C462<61 12.1 (1, SA 1-25 (AS, at 11-1 :CC
S 7 C?3:86@ 12.5 (1, SA 23- (A, at 28. ICE
Page 22-
determine whether that claim is $ustified.
A3
512. @!we'er0 in this matter the e'idence ! the re"e9i'e res#!nse is we""
substantiated b$ e9#erts with!ut an$ gainsa$ing e'idence. It a"s!
acc!rds with the 'ersi!n ! the Accused re"e'ant t! the discharge ! the
sh!ts.
PUTATIVE PRIVATE DEFENCE
55-. I the @!n!urab"e C!urt were t! ind that the Accused did n!t discharge
the sh!ts in a re"e9i'e res#!nse0 c!nseBuent u#!n an e9aggerated
start"e0 which made him inca#ab"e ! acting in acc!rdance with his
a##reciati!n ! right and wr!ng0 !r inca#ab"e ! acting0 then the
a"ternati'e inding can !n"$ be that the Accused intenti!na""$ discharged
the sh!ts0 in the be"ie that the intruder4s was4were c!ming !ut ! the
t!i"et0 t! attac% the Accused and the *eceased.
551. The Accused testiied ... that split moment " believed somebody was
coming out to attack me, that is what made me fire ... out of fear ... " did
not have time to think ... (&ec!rd 18810 "ines 2C11,
552. @e a"s! testiied ... " fired my firearm " believed that someone was
coming out of the toilet to attack me ... " do not know how to put it in a
different way. (&ec!rd 188.0 "ines 18C1., and urther ... " thought that
somebody was coming out to attack me (&ec!rd 188.0 "ines 21C22,.
553. S 7 56 O8<76<4? 1223 (2, SAC& 82 (A, is a case dea"ing with #utati'e
3.
at 1210 #ar 18
Page 221
#ri'ateCdeence and dolus eventualis. The C!urt stated i an accused
h!nest"$ be"ie'es that his "ie !r #r!#ert$ was in danger0 but !bAecti'e"$
'iewed it was n!t0 the deensi'e ste#s he t!!% c!u"d n!t c!nstitute
#ri'ate deence. I in th!se circumstances he %i""ed s!me!ne0 his
c!nduct was un"awu". @is err!ne!us be"ie that his "ie !r #r!#ert$ was
in danger ma$ we"" (de#ending u#!n the #recise circumstances, e9c"ude
dolus0 in which case "iabi"it$ !r the #ers!n7s death based !n intenti!n
w!u"d a"s! be e9c"uded? at w!rst he c!u"d then be c!n'icted ! cu"#ab"e
h!micide.
553. The dicta ! O8<76<4? ab!'e was reerred t! and a##"ied in the
unre#!rted SCA Audgment ! >%hiFe ' S (1142-13, P2-13Q KASCA 82 (13
A#ri" 2-13, at #ar 13.
558. A"th!ugh the test !r #ri'ate deence is !bAecti'e C w!u"d a reas!nab"e
man in the #!siti!n ! the accused ha'e acted in the same wa$ (S ' Ntu"i
1258 (1, SA 322 (A, at 331E,0 the test !r #utati'e #ri'ate deence it is
n!t the "awu"ness that is in issue but cu"#abi"it$ in which e'ent his
subAecti'e intenti!n is c!nsidered in !ences reBuiring intent.
551. As stated ab!'e0 the inc!rrect be"ie that a #ers!n acted in se"Cdeence
needs n!t t! be reas!nab"e0 as the test remains subAecti'e in regard t!
!ences reBuiring intent. I he acted in an unreas!nab"e manner he ma$
be e9#!sed t! cu"#ab"e h!micide.
555. In sh!rt0 i the Accused bona fide but mista%en"$ be"ie'ed that he acted
in se"Cdeence (#ri'ate deence, he c!u"d n!t be he"d "iab"e !n acc!unt
Page 222
! murder as he "ac%ed the reBuisite intenti!n t! c!mmit a murder.
32
55.. Pr!ess!r :urche""
8-
succinct"$ summarises the "ega" #!siti!n b$ stating
as !""!ws:
.ince intention is tested sub$ectively, the 'uestion of whether the
accused knew he was exceeding the bounds of private defence
must be determined by examining the state of mind of the accused
himself and especially his perceptions and beliefs relating to the
attack and his defence. Thus, if, as a result of mistake, the
accused himself genuinely believed the attack was unlawful, or
that his life was in danger, or that he was using reasonable means
to avert the attack, he should escape liability for a crime re'uiring
intention on the ground that he did not intend his conduct to be
unlawful. ?owever, where the accused has killed in private
defence, the fact that he believed that he was acting lawfully will
not prevent him from being convicted of culpable homicide.
15
(I !
c!urse the Accused acted c!ntra t! the reas!nab"e #ers!n0 dea"t
with be"!w,.
CULPABLE HOMICIDE
552. In terms ! Secti!n 28. ! the CPA cu"#ab"e h!micide is a c!m#etent
'erdict t! a charge ! murder.
32
:urche"" at 138
8-
at 315
81
@unt 315
Page 223
5.-. In !rder t! determine whether !r n!t the Accused was neg"igent in
causing the death ! the *eceased0 !ur c!urts ha'e traditi!na""$ a##"ied
a threeC#art test:
82
4a7 +ould a reasonable person, in the same circumstances as the
accused, have foreseen the reasonable possibility of the
occurrence of the conse'uence or the existence of the
circumstance in 'uestion, including its unlawfulnessM
4b7 +ould a reasonable person have taken steps to guard against that
possibilityM
4c7 <id the accused fail to take the steps which he or she should
reasonably have taken to guard against itM
5.1. I a"" three #arts are c!nirmed then the Accused7s c!nduct w!u"d be
regarded as neg"igent.
5.2. A"th!ugh the test !r neg"igence is !bAecti'e0 certain subAecti'e act!rs
are a##"ied as a m!diied !rm ! b"amew!rthiness.
83
5.3. In @arringt!n N! and An!ther ' Transnet ;td t4a >etr!rai" and Others
2-1- (2, SA 352 (SCA, at #322 @eher EA stated:
The observations of +essels &@ 52 uttered 21 years ago in .outh
,frican >ailways v ardeleben 506A ,< A26 at A30 still have force(
82
:urche"" : at # 321
83
:urche"" 325
Page 223
"n $udging whether there is culpa, the &ourt must, as nearly as it can,
place itself in the position of the engine driver at the time when the
accident occurred and $udge whether he showed that ordinary care
which can reasonably be expected from a reasonable man under all the
circumstances. The &ourt must not in any way be affected by the tragic
conse'uences of the accident, nor, on the other hand, must it excuse
any carelessness on the part of engine drivers. "t must not expect
superhuman powers of observation or an impeccable discretion on the
part of engine drivers, nor must it say to him after the event B if you
had done this or that more 'uickly or more accurately, or if you had
perceived this or that more readily, you might possibly have avoided the
accident. "t is so easy to be wise after the event.
5.3. In S ' >aname"a and An!ther (*irect!rC6enera" ! Eustice Inter'ening,
2--- (1, SAC& 313 (CC, OT&E6AN and CA>E&ON AE !und:
The difficulties of applying a purely ob$ective test in a diverse society
have been acknowledged by our courts and have led some
commentators to suggest that the test for culpa in our law should be
sub$ective. +hatever the merits of this suggestion, it is clear that in
applying the %ob$ective% element in the determination of reasonable
cause, the court does not ignore the material circumstances in which
the accused found himself or herself. "n > v Gbombela 5066 ,< /60,
one of the early authoritative cases establishing the ob$ective criterion,
the &ourt held that B
%HaI reasonable belief, in my opinion is such as would be formed by a
reasonable man in the circumstances in which the accused was placed
in a given case%. 30 4=mphasis added.7
H21I The approach in Gbombela%s case has been followed repeatedly.
35 "n . v Fan ,s 5326 4/7 ., 0/5 4,7, >umpff &@ explained the origin
and application of the fre'uentlyBinvoked standard of the %careful head of
Page 228
a family%, the diligens paterfamilias. ?e stated(
%"n our law since time immemorial we have used the diligens
paterfamilias as someone who in specified circumstances would behave
in a certain way. +hat he would do is regarded as reasonable. +e do
not use the diligentissimus 4excessively careful7 paterfamilias, and what
the diligens paterfamilias would have done in a particular case must be
determined by the $udicial officer to the best of his ability. This diligens
paterfamilias is of course a fiction and is also, all too often, not a pater
4father7. "n the application of the law he is viewed Job$ectivelyJ, but in
essence he must apparently be viewed both Job$ectivelyJ and
Jsub$ectivelyJ because he represents a particular group or type of
persons who are in the same circumstances as he is, with the same
ability and knowledge. "f a person therefore does not foresee what the
other people in his group in fact could and would have foreseen, then
that element of culpa, that is failure to foresee, is present.% 4Cur
translation.7
4=mphasis added7
5.8. "n . v #gema 500/ 4/7 .,&> 615 4<7 the !""!wing a##ears in the
headn!te:
+hile it is clear, in applying the test of the reasonable man in
determining whether or not certain conduct was negligent, that the days
of fullBblown ob$ectivism 4see, for example, > v Gbombela 5066 ,< /60
at /2/7, are past, and some evidence of sub$ectivising the test for
negligence is apparent, there is no warrant for departing holusBbolus
from the old and wellBestablished reasonable man test. The reasonable
man himself, of course, evolves with the times( what was reasonable in
5066 would not necessarily be reasonable today. +hat has happened in
practice, however, is that the reasonable man is now to be placed %in the
position of the accused%. "t is not clear from the decided cases, however,
what is to be included and what is to be excluded from this position. ,
balance between the various ideas of what is to be included and what
excluded from the test should be sought along the lines of
reasonableness. Cne must test negligence by the touchstone of the
reasonable person of the same background and educational level,
culture, sex and race of the accused. The further individual peculiarities
of the accused alone must be disregarded.
4=mphasis added7
Page 221
5.1. There can be n! d!ubt that disabi"it$ d!es n!t !rm #art ! individual
peculiarities and there!re it must be ta%en int! acc!unt in the c!nce#t
! the reas!nab"e #ers!n re#resenting a particular group of persons
who are in the same circumstances as he is, with the same ability and
knowledge
1A
5.5. T! den$ disabi"it$ in determining reas!nab"eness0 w!u"d mean that
disabi"it$ is unreas!nab"e.
5... &riminal capacity as dea"t with ab!'e is a"s! a #rereBuisite !r "iabi"it$
in the case ! cu"#ab"e h!micide.
5.2. <e ha'e submitted in res#ect ! crimina" ca#acit$ (supra7 that the
Accused0 in discharging the irearm did s! because ! an increased
start"e res#!nse. The start"e res#!nse was re"e9i'e0 !r which the
Accused c!u"d n!t be he"d acc!untab"e as he "ac%ed ca#acit$ in the
in'!"untar$ re"e9i'e res#!nse. <hether this re"e9 a""s under the act
4actus reus7 !r criminal capacity ma%es n! dierence as b!th negates
"iabi"it$.
52-. <e a"s! #!inted !ut that the start"e res#!nse was e9aggerated !r
increased due t! the slow burn eect ! his disabi"it$ and c!nseBuent
'u"nerabi"it$ as we"" as his c!nc!mitant an9iet$.
521. <e submitted4supra7 that the Accused sh!u"d n!t be he"d "iab"e !r a
re"e9i'e discharge caused b$ the increased start"e res#!nse. It eBua""$
a##"ies t! cu"#ab"e h!micide.
83
Dan As supra
Page 225
522. In the e'ent ! the C!urt inding that the Accused had the reBuisite
crimina" ca#acit$0 we submit that the !""!wing act!rs which !und
a##"icati!n in #ers!ns with disabi"it$0 must be ta%en int! acc!unt as
being re"e'ant t! the reas!nab"e #ers!n with a simi"ar disabi"it$:
522.1 The s"!w burn eect ! the disabi"it$ "ea'es a #ers!n in a
'u"nerab"e0 earu" and an9i!us state.
522.2 The reacti!n ! a #ers!n t! a threat !r #ercei'ed threat is "imited
as genera""$ he4she d!es n!t ha'e the #ri'i"ege ! "ight.
522.3 A #ers!n with disabi"it$ has an increased start"e res#!nse.
523. It is with the ab!'e in mind that we ana"$se the c!nduct ! the Accused0
measured against the reas!nab"e #ers!n0 in the same circumstances as
the Accused0 with the same disabi"it$.
523. *uring the ear"$ h!urs ! the m!rning the Accused w!%e u# and saw that
the s"iding d!!r was sti"" !#en0 with the ans #!siti!ned at the s"iding
d!!r.
528. :e!re he g!t u# t! bring the ans in and c"!se the s"iding d!!r0 he s#!%e
t! the *eceased.
521. Ater he had br!ught the ans in0 he heard a n!ise which resemb"ed the
n!ise ! the bathr!!m wind!w s"iding !#en. It is c!mm!n cause that the
bathr!!m wind!w was !und b$ the #!"ice t! be !#en.
525. The n!ise caused a reeFing start"e0 and e'!%ed a ight res#!nse.
Page 22.
52.. The ight res#!nse was a c!nseBuence ! his disabi"it$ in the absence !
a rea" "ight !#ti!n.
522. Sn$man
88
submits that there is no duty on the attacked party to flee. To
recognise a duty to flee is to deny the very essence of the present
defence 4of private defence7. 9rivate defence deals with the defence of
the legal order, that is, the upholding of $ustice. Kleeing is no defence8 it
is a capitulation to in$ustice. +hy must $ustice yield to in$usticeM
.--. :urche""
81
)ikewise, the inhabitants of dwellings are not expected to flee
from their homes rather than resist the intrusion of a burglar or thief.
.-1. >!re!'er0 when a #ers!n7s abi"it$ t! "ee is c!m#r!mised b$ disabi"it$0 it
w!u"d be e'en m!re unAust t! den$ him the right t! #r!tect himse" and
the #ers!n he "!'es.
.-2. Acc!rding"$0 it is submitted that it was n!t unreas!nab"e t! arm himse"
and a##r!ach the bathr!!m s! as t! c!nr!nt the intruder4s.
.-3. It was a"s! n!t unreas!nab"e t! #!int his irearm at the t!i"et d!!r0 where
the #ercei'ed danger was and r!m which he had t! #r!tect himse" in
the e'ent ! an attac% !n him.
.-3. The Buesti!n is whether !r n!t the Accused was neg"igent (as #er the
test t! be a##"ied !r neg"igence, b$ discharging the irearm.
.-8. In c!nsidering the ab!'e0 the disabi"it$ and the eects ! disabi"it$ !n the
88
# 1-2
81
# 132
Page 222
Accused0 must be c!nsidered as the c!nduct ! the Accused must be
measured against that ! the reas!nab"e #ers!n with the same abi"it$ !r
disabi"it$ and the eects ! the disabi"it$ !n the reas!nab"e disab"ed
#ers!n ma$ a"s! n!t be disc!unted.
.-1. One must with res#ect test the re"e9i'e res#!nse ! the Accused b$
discharging the irearm against the e9#ected res#!nse ! the reas!nab"e
disab"ed #ers!n in the same circumstances. This means !ne must #"ace
the reas!nab"e disab"ed #ers!n0 wh! w!u"d be 'u"nerab"e and be 'er$
an9i!us0 at the entrance t! the bathr!!m.
.-5. One must a"s! ta%e int! acc!unt that the reas!nab"e disab"ed #ers!n
c!u"d ha'e an increased start"e re"e9.
.-.. C!nseBuent"$0 the Buesti!n is whether !r n!t the Accused was neg"igent
in his re"e9i'e reacti!n t! the n!ise ! m!'ement in the t!i"et0 bearing in
mind that the start"e is c!ntr!""ed b$ #rima" instinct and n!t a c!nsidered
th!ught #r!cess.
.-2. <e res#ectu""$ submit that the Accused0 in the #ecu"iar circumstances
and ha'ing regard t! his disabi"it$ and the eects ! such disabi"it$0 did
n!t act neg"igent"$. The dire c!nseBuences ! the sh!!ting sh!u"d n!t
be ta%en int! acc!unt in c!nsidering whether neg"igence has been
estab"ished
85
.
.1-. The wisd!m in S 7 B/B4<@ I176@23612@
(.
is a reminder that a C!urt
85
>etr!rai" 4.upra7
8.
12.. (1, SA .11 (A, at .11 E = .15 :
Page 23-
must be cauti!us t! Audge neg"igence ex post facto with #erect hindsight
in a #!siti!n ! an armchair critic. Nich!"as AEA said the !""!wing:
J"n considering this 'uestion 4what was reasonably foreseeable7
one must guard against what +illiamson @, called the %insidious
subconscious influence of ex post facto knowledge% 4in S v Mini
5066467 ., 533 4,7 at 506=BK.7 #egligence is not established by
showing merely that the occurrence happened 4unless the case is
one where res ipsa l!i"ur applies7 or by showing after it
happened how it should have been prevented. The #ili$ens pa"er
%a&ilias does not have prophetic foresight 4S v 'ur$er supra at
320<7. "n Overseas Tan(s)ip *U+) Li&i"e# v Mr"s D!( ,
En$ineerin$ C Li&i"e# *")e -a$n Mun") H5065I ,& 633 49&7
H5065I 5 ,ll => A0A Fiscount .imonds said at A/A 4,&7 and at A5A
PB? 4in ,ll =>7 %after the event, even a fool is wise. ut it is not the
hindsight of a fool8 it is the foresight of the reasonable man which
alone can determine responsibility%.J
(Em#hasis su##"ied,
B ROUX SC
* C OLD%ADGE
Chambers
Sandt!n
31 Eu"$ 2-13