S v Koester (CC23/2016) [2016] ZAECGHC 61 (10 August 2016)

IN

THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CC23/2016

In the matter between:

THE

STATE

and

ANGELO

KOESTER

Accused

JUDGMENT

RUGUNANAN AJ:

[1] The accused, Mr Angelo Koester, is charged with murder. The indictment alleges that on 3 October 2015 at Bulkraal in the district

Cookhouse he unlawfully and intentionally assaulted the deceased, Belinda Olivier an adult female person, with intent to cause her grievous bodily harm and to kill her and / or unlawfully and intentionally accelerated her death by failing to obtain medical

treatment for her thereafter, as a result of which injuries the deceased died on 5 October 2015. The charge incorporates reference to the provisions of section 51(2) read with Part 2 of Schedule 2 of the Criminal Law Amendment Act, No. 105 of 1997, as amended. The accused was legally represented and pleaded not guilty to the charge. His plea-explanation was that he denied having killed the deceased or having assaulted her in any manner.

[2] At the commencement of the trial the following exhibits were handed in by agreement between the parties, namely, “Exhibit A” which is a photograph album of the alleged murder scene; “Exhibit B” being a report by Dr Jan Anthonie De Beer of a post-mortem examination of the deceased; and “Exhibit C” which is an album of photographs of the deceased‟s body.

[3] The evidence, shorn of surplusage and peripheral detail, is dealt with hereunder.

[4] John Van Rensburg (“Van Rensburg”) was the first witness called by the state. He was born in 1961, lives in Bedford and earns a living doing masonry work and erecting fences.

[5] During October 2015 he was included in a team that was employed to erect a wire fence on a stock farm “Bulkraal” in Cookhouse. The team included three (3) other persons, namely Llewellyn, Patrick and the accused, its leader, also known by the

nickname “Tatiem”. Llewellyn and Tatiem are his sons. While working on the farm, the team occupied a labourer‟s

cottage. Van Rensburg would live on the farm from Mondays to Fridays. On weekends he would return to his home in Bedford. The cottage

comprised of four rooms. He occupied the front room; Llewellyn and Patrick shared a room while the accused and his girlfriend Belinda

(the deceased) occupied a back room. He knows the deceased. It is common cause that the deceased and the accused were involved in a relationship for more than ten (10) years.

[6] On Friday, 2 October 2015, he left for Bedford unaccompanied by the remaining members of the team. With effect from the following week the team would be accommodated in another cottage on the same farm and the accused would arrange for his belongings to be transferred to that cottage. On Saturday 3 October 2015 the accused and the deceased visited him in Bedford. Whenever the accused returned to Bedford the accused would live with him in his house. The accused brought along a bottle of “rumba” (a mixture of rum and Coke). The deceased said that it was too strong for her. She drank of some other wine while he and the accused drank the rumba. Everything appeared to be normal between the accused and the deceased. For the while that they visited they were in a cheerful mood. Near sunset the accused and the deceased went back to the farm, still in a cheerful mood.

[7] The following Monday morning, 5 October 2015, Van Rensburg returned to the farm sometime between 7 and 8 o‟clock. He found a gardener at the cottage that the team occupied the previous week. His possessions were no longer there. He then proceeded to another portion of the farm to see one Patrick, an elderly person who is not a team member, but it being common cause, is also known as “Bheza”. Along the way he observed Bheza walking ahead carrying a bridle and a saddle. He ended up at Bheza‟s place upon being invited in for a drink of water. Bheza‟s wife Nosithembele was present. At some point a “zol” was smoked. The accused arrived.

[8] At this point, Mr Engelbrecht, who appeared for the State indicated that he intended leading evidence of an extra-judicial admission allegedly made by the accused. Mr Geldenhuys, who appeared for the accused raised no objection because the accused would deny such evidence.

[9] According to Van Rensburg when the accused arrived with a bottle of wine he said that it was intended to be used for the deceased‟s

pain because he had “effentjies met haar gebaklei” and “haar met die platkant van a graaf geslaan”.

[10] Van Rensburg stated that the accused did not say why he hit the deceased nor did he himself ask the accused why he had done so. It is apparent from Van Rensburg‟s cross-examination that he had at that stage not seen the deceased. According to Van Rensburg, Nosithembele asked the accused if the deceased was injured. The accused‟s response was in the negative. The three men and Nosithembele drank of the wine brought by the accused.

[11] Having left Bheza‟s place and while walking to the other cottage, Van Rensburg stated that the accused told him that the deceased was lying down inside. At some point Van Rensburg walked ahead of the accused. When Van Rensburg got to the cottage he called out to the deceased “Belinda is jy hier?” She answered Van Rensburg saying “Ja Oom Jan ek is hier”.

[12] Van Rensburg entered the cottage. He stated that it has four rooms and is identical to the one previously occupied by the team. Thus everyone occupied the same room as in the previous cottage. He noticed his possessions in the front room, that he would occupy. He also, at some point, observed a spade in the accused‟s room along with the other tools used by the team. These items are usually kept by the accused.

[13] In the room occupied by the accused and the deceased, he noticed that the deceased was lying in bed. It then became clear to him why she could not get up. She was lying on her back covered with blankets. She was alive. He observed what he described as a “krap merk” on her head in the region of her ear. In this regard he pointed to his right ear. He said they spoke. She asked for a cool drink and he obliged.

[14] Before leading evidence as to what had further transpired between Van Rensburg and the deceased, Mr Engelbrecht applied to for leave to lead hearsay evidence. Presumably cognisant of the ambit of such evidence Mr Geldenhuys did not object to it being led, this in the light of the accused‟s denial of the charge against him. Such evidence was led.

[15] Van Rensburg went on to ask the deceased what was the matter, “Ek vra wat makeer”, to which she responded that the accused hit her with the flat side of a spade. In his words “sy se die beskuldigde het haar geslaan met die plat kant van a graaf”. According to Van Rensburg the accused was not present when the deceased made this disclosure. Van Rensburg assumed that the accused was probably somewhere outside the cottage. When the accused entered the cottage he said that he was hungry. The accused cooked potato chips and both he and Van Rensburg ate them with bread. The accused also dished a portion for the deceased. After having

eaten, the accused went to lie down in the front room. Sometime before 10 o‟clock that morning the accused woke up and said

that he was going to borrow money get a vehicle so that he could get medical assistance for the deceased.

[16] The person from whom the accused intended to borrow money lived within walking distance from the farm and also sold liquor. Van Rensburg went along with the accused. The accused borrowed R200,00 and bought a bottle of wine which he gave to Van Rensburg.

[17] While at the moneylender‟s place two men arrived. They are known to Van Rensburg. He sat with them. They drank. The accused did not join them; he left. At about 3 o‟clock that afternoon Van Rensburg said he went back to Bheza and only left at sunset. He proceeded back to the cottage where the deceased was.

She was still alive but complained about her stomach. He decided to go out and look for “gal-bossie”. He explained that it is a plant substance, brewed like tea and used for stomach ailments. When he returned after acquiring the herb it was already dark. The accused had not returned. Van Rensburg called out for the deceased but she did not answer. He went into the room and took hold of her right forearm. He demonstrated that he flipped it back and forth. The arm made a clicking sound but felt “slap” (lame). He then placed his ear near the deceased‟s head. He detected she was not breathing.

[18] He went to Bheza for assistance. Much later the police returned with the accused locked in a van. The accused asked him if his girlfriend was dead. He responded in the affirmative.

[19] Elsewhere in his evidence he stated that the deceased‟s condition was bad which is why he believed she could not climb out of the bed. It is not entirely clear if he made this assessment when he saw the deceased in the morning or when he returned at night. He also mentioned that in addition to complaining about her stomach, the deceased complained about the mark behind her ear and pain in her legs.

[20] Under cross-examination it was put to Van Rensburg that the Saturday on which the accused and the deceased visited, they did not return to the farm; they remained in Bedford and visited the accused‟s grandmother. On the accused‟s version, both he and the deceased returned to the farm on Sunday, 4 October 2015 and called at Beza‟s place early on Monday morning 5 October 2015 at which time the deceased asked Nosithembele for beer. This was the version put to Van Rensburg during cross-examination. This version went on to disclose that the accused and the deceased thereafter returned to their cottage after which the accused went to the farmowner‟s house where he met Bheza. From there, both he and Bheza proceeded to a moneylender. Having borrowed R200.00, the accused bought a bottle of wine whereafter he and Bheza went back to Bheza‟s place. Van Rensburg could not comment but stated that he was aware Bheza would say that the accused and the deceased returned to the farm on Saturday. Van Rensburg also repeated, as stated during his evidence in chief, that he was already at Beza‟s place before the accused arrived. When the accused arrived the accused disclosed that the bottled wine was for the deceased‟s pain because he hit her with the flat side of a spade. Van Rensburg repeated that the accused‟s words were “Ek het haar effentjies geslaan”. Van Rensburg also stated that Nosithembele asked the accused whether he injured the deceased, to which question the

accused replied in the negative. Van Rensburg confirmed he is aware that a spade can cause serious injury and although he was shocked and felt worried about the deceased he did not say anything because he had not seen the deceased at that stage.

[21] It was put to Van Rensburg that the accused denies having said that he hit the deceased with the flat side of a spade and denies having said anything about bringing along wine for the deceased‟s pain, that the accused would say when he made breakfast the deceased had no injuries and was healthy, that when breakfast was made she was not lying in bed, that no spade was among the tools stored in the room occupied by the accused and the deceased, and that money was borrowed for a purpose other than procuring transport for medical assistance for the deceased, namely to enable the accused to return to Bedford to fetch the other team members, Patrick and Llewellyn. Although Van Rensburg confirmed that Patrick and Llewellyn did not arrive on the farm that Monday, he refuted the accused‟s assertions.

[22] It was also put to Van Rensburg that the relationship between him and the accused was not a good one, that they argued, that he rejected the accused and treated him like a stepchild, that months before he complained to the owner of the farm about the accused. On the latter issue Van Rensburg confirmed that the complaint was work related and concerned the accused having preferred two other people. On the other antecedent aspects Van Rensburg stated that the accused is someone for whom he has affection, that he appreciated very much what the accused did for him; in particular as team leader the accused provided for the team in that he was the one who went out and procured work for its members.

[23] The bottom line of the accused‟s version as put to Van Rensburg is that the motive for falsely implicating the accused in killing the deceased stemmed from a bad relationship between the accused and Van Rensburg. This also factored a conspiracy that included Bheza and Nosithembele to falsely implicate the accused in the commission of the offence because their son, Charles, had a fight with Llewellyn several months earlier in which fight the accused intervened as a brother of Llewellyn because Charles was armed with a knife. Van Rensburg refuted the assertion of a bad relationship with the accused and the conspiracy with Bheza and Nosithembele. He stated, in any event, that he had no knowledge of the incident regarding the fight with Charles.

[24] It was put to Van Rensburg, albeit without factual foundation, that the accused had a suspicion that it was Van Rensburg who killed the deceased. Van Rensburg rejected this.

[25] Nosithembele Mtsofeni (“Nosithembele”) testified that she is 58 years old and is a housewife living on the farm with her husband, Thozamile Patrick, also known as “Bheza”.

[26] She knows the accused and the deceased. They occupied a cottage not too distant from where she and her husband are living (this is understood to be the cottage initially occupied by the accused‟s team). The deceased also kept house for the accused. Because the cottage is within sight from where she and her husband are living, she usually sees smoke lingering in the mornings. She saw the accused on Monday morning 5 October 2015 at about 8 o‟clock. The accused was at her home in the company of her husband. Also present was Van Rensburg. The three men were having a drink known as “umqombothi”. She did not have anything to drink. She asked the accused why had there been no smoke coming from the cottage that morning. Referring to the deceased, his response was “Ouma ek het haar nie baie hard geslaan” .. “Ek het haar effentjies geslaan met „n graaf … Ouma jy moet asseblief nie kwaad raak nie” .. “Ek het haar net so effens geslaan met die graaf.”. She observed that the accused shivered when he said this while holding the jug with both hands. The accused dropped the jug after she enquired about the smoke but before he answered her. (The exact moment in the conversation between them when the jug was dropped is irrelevant, considering that it is common cause that the jug was dropped but for a different reason on the version of the accused). Nobody asked anything further of the

accused and Nosithembele went out to gather wood. It is not known for how long she was out. She said that she did not see the deceased that Monday, but that night Van Rensburg came to over and told both her and her husband it appeared that the accused injured the deceased and he required assistance from Bheza for contacting the police. Concerning the relationship between the accused and his father and the relationship between the accused and the deceased, she quite simply stated that she was unable to say if knew anything.

[27] During cross-examination, Nosithembele stated that the accused dropped the jug after he answered her. It was put to her that this was contrary to her evidence-in-chief where she stated that he dropped the jug before answering her. She replied that she made a mistake and did not deduce anything from the jug having been dropped. Although the manner in which the jug had dropped was not put to Nosithembele, it was put to her that the accused will deny having said that he assaulted the deceased with a spade. Nosithembele stated that she would not come to court to and lie about what the accused said to her.

[28] Nosithembele conceded that a spade is an instrument that can cause serious bodily injury. Accordingly, she was questioned whether she might have been shocked by what, on her version, was an admission by the accused that he hit the deceased with a spade. She stated that she was not shocked because the accused mentioned he did not hit the deceased very hard. When asked if she was not concerned about the deceased considering that they were neighbours, she replied that she had no knowledge of how the incident occurred, that she was not concerned because she did not know the deceased very well and except for seeing the deceased regularly walking past her house they would merely exchange greetings without speaking to each other. That response from Nosithembele triggered the question why was she concerned about the absence of smoke from the neighbouring cottage. She responded that the presence of smoke was something usual and her enquiry from the accused was without any specific reason.

[29] It was put to Nosithembele that according to the accused both he and the deceased came over early that Monday morning and that the deceased requested Nosithembele to offer beer. Nosithembele denied this, more particularly that the deceased had visited that morning. On the version of the accused, as put to Nosithembele, both he and the deceased left from Nosithembele‟s but sometime later that morning the accused returned with Bheza. Nosithembele once again stated that the accused was indeed at her house that morning but he did not arrive with her husband Bheza.

[30] As for the relationship between herself and Van Rensburg, Nosithembele stated that she does not know him very well but they are on speaking terms. According to her, Van Rensburg and her husband Bheza get along very well. It was put to her that the accused has a suspicion that she, along with Bheza and Van Rensburg conspired to give false evidence in these proceedings. This stemmed from a bad relationship between the accused and Van Rensburg, and the conspiracy which included her and Bheza to falsely implicate the accused in the commission of the offence because their son, Charles, had a fight with Llewellyn. Nosithembele stated that she knew nothing about the incident between her son and Llewellyn and there was no conspiracy amongst the three state witnesses. In amplification, she stated that she could not comment on the relationship between the accused and his father, and as for the relationship between herself and the accused, he often greeted when he walked past her house.

[31] Dr Jan Anthonie De Beer testified on behalf of the State. He holds an MBChB degree which he obtained in 1985 at the University of Stellenbosch. He is presently stationed in Graaff-Reinet in the service of the Department of Health, Eastern Cape as a Forensic Pathologist. He has been conducting post-mortems and related services on a full time basis for the last five (5) years. He compiled a report in relation to a post-mortem examination of the deceased, Belinda Olivier on 9 October 2015. This report was handed in at the commencement of the trial by agreement between the parties and was marked “Exhibit B”.

[32] De Beer stated that the post-mortem findings were, as per Section C paragraph 1 of the report :

“Fracture neck;

Fracture left hip;

Multiple bruises on body;

Contusion scalp.”

[33] Based on the aforementioned injuries he concluded that the cause of death was “blunt force head injury – fracture neck – unnatural cause of death”.

[34] He testified that he observed the deceased had bruises and lacerations throughout her entire body as depicted in the anatomical

sketch attached his report. These injuries are consistent with what is depicted in the photographs in “Exhibit C”. In relation to the fractured left hip De Beer was of the opinion, having regard to Exhibit “C”, photograph (iii), as also photographs (ix) and (x), that the mechanism of the injury could be attributed to either one of two possibilities namely, a direct blow or a rotational movement of the left limb. The depiction in the photographs, in his opinion does not support the conclusion that the deceased‟s fractured hip occurred as a result of a direct blow. He stated that the injury was in all probability the consequence of rotational movement. In his opinion this injury cannot be regarded as the fatal injury.

[35] In relation to the fracture of the deceased‟s neck, De Beer stated that this injury could not be detected from the photographs in “Exhibit C”. It was detected when he performed an autopsy. He regards the fracture of the deceased‟s neck as the fatal injury. He explained that when a vertebral segment becomes dislocated either through flexion or extension or compression forces, the dislocated vertebra squeezes the spinal cord thereby subjecting it to pressure. This may cause death immediately or death could be prolonged by several hours if the injured person were lying in a fixed position and did not move. Movement may cause the affected vertebra to dislocate further and thus aggravate or even damage the spinal column.

[36] De Beer opined that in the case of the deceased, the cause of death was a displaced vertebra which caused injury to her spinal column. It was possible that death might have occurred hours later and not immediately.

[37] Dealing with the mechanism of the injury, De Beer stated that in addition to bruises and lacerations he observed swelling on the deceased‟s face and skull. From this observation it was reasonable to conclude that the blows administered to the deceased‟s

head with an instrument such as a spade, whether using the blunt or the flattened part could have occurred with such force as to cause a fracture of the deceased‟s neck. A fracture could also occur with the same degree of force applied as in a direct strike on top of the head causing a fracture through the application of compression force. De Beer stated that in all these instances the application of considerable force “redelike geweld” could not be excluded.

[38] It bears mentioning that De Beer observed a laceration on one of the deceased‟s arms. He regarded the laceration as a defensive injury; in other words the deceased would have sustained that injury by warding off blows being administered to her. In the same category of defensive injuries, De Beer stated that the deceased‟s back (as is apparent from the photographs in “Exhibit C”) showed numerous linear lacerations that could only have been caused by the sharp edge of a knife or an instrument such as a spade. Once again, the fact that such injuries were manifest on the deceased‟s back indicated that she turned away from her attacker.

[39] The totality of the deceased‟s injuries, according to De Beer, could have been caused by an instrument such as a spade, depending on how the spade was handled. Theoretically, and gauging from the deceased‟s injuries, the duration of the assault could have been approximately 2 minutes depending on the degree of anger exhibited by the assailant.

[40] Under cross-examination, De Beer re-iterated that there are instances of neck injuries involving fractured vertebrae where death could be delayed by several hours if the injured person were laying still in which event the spinal column is kept stable. This possibility could not be excluded in the case of the deceased, nor could one exclude an assault as the precipitating cause of her fractured neck resulting in her delayed death.

[41] Thozamile Patrick Sam, also known as “Bheza”, stated that he is married to Nosithembele Mtsofeni. He lives and works on Bulkraal and he knows Van Rensburg and that the accused is Van Rensburg‟s son. He confirmed that the cottage occupied by the accused‟s team can be seen from where he and his wife are living. He is also able to see if anyone enters or leaves that cottage and he is able to hear if somebody shouts from that cottage.

[42] He got to know the deceased when she and the accused came to live on the farm in that cottage. Both he and his wife socialised with the accused and the deceased whenever they visited his house. He also stated that the deceased on occasion used to come over and ask for milk. During the weekend of the incident, Bheza stated that he did not leave the farm except for going to Bedford on the Saturday to do shopping whereafter he returned before nightfall and spent the rest of the weekend at home with his wife.

[43] He stated the Saturday night (understood as 3 October 2015) he could see light burning in the cottage occupied by the accused and the deceased. He did not see them but this led him to believe that they were there. Sunday morning he saw the accused standing outside the cottage. The Sunday Bheza stayed at home and spent his time drinking with his wife. On Monday (understood to be 5 October 2015), he was up at 5 o‟clock. Sometime before 6 o‟clock the accused came over because the owner of the farm wanted to see both of them. Bheza poured traditional beer into a jug for both him and the accused. Nosithembele asked the accused where was the deceased because she did not see smoke coming from their cottage. The accused responded by telling her that she should not be angry at him because he hit “Belinda” with a spade but did not hit very hard. Referring to what the accused said, Bheza‟s words were to the effect “hy se my vrou moet nie kwaad word .. hy het vir Belinda met „n graaf geslaan”. This was said in the kitchen where everyone was seated. The accused‟s father, Van Rensburg, had not arrived at that time. Bheza stated that as soon as his wife enquired about the deceased the accused shivered nervously and dropped the jug which he held with both hands. Bheza picked up the jug and once again poured beer into it. After they drank, both he and the accused proceeded to the house of the farm owner.

[44] After meeting with the owner, Bheza and the accused went to see somebody who sells liquor. The accused bought a bottle of wine and borrowed money which he said he intended to use for acquiring medication for the deceased. Van Rensburg arrived. They all had a few drinks whereafter all three of them proceeded to Bheza‟s home. On arrival, Bheza poured beer into the jug and the three of them drank. Nosithembele was present. On Bheza‟s version, the accused wanted to go to Beford to buy medication for the deceased because the accused hit her. Van Rensburg and the accused left. Bheza assumed they went to their cottage and did not pay further attention to them. During the course of that Monday, Bheza did not see the accused but later that night at about 8 o‟clock, Van Rensburg arrived and requested assistance in calling the police. Van Rensburg told him that the deceased was dead. The police were eventually contacted with the assistance of one “Nosiseko”. After the police were contacted, Bheza and Nosithembele accompanied Van Rensburg to the cottage where the deceased was. At the cottage, Bheza noticed that the deceased was lying on a mattress with her back against a wall but with her head resting in the palm of her right hand supported by her right elbow.

[45] Bheza stated that he did not know of Van Rensburg‟s whereabouts during that day except that he saw Van Rensburg in the morning and then again at night. He pointed out however that Van Rensburg told him that he went to the owner‟s house in an attempt to obtain medication for the deceased. Bheza further stated that he only saw the accused later that night when the police arrived with him, thus implying that he did not see the accused during the day except for the instances mentioned.

[46] Under cross-examination, Bheza stated that on being told by the accused that he hit the deceased, he was indifferent considering that the deceased was the accused‟s “ghitaar” (suggesting, in other words, that the deceased was the property of the accused). Bheza went on to say that the accused was in the

habit of assaulting the deceased. When pressed about his lack of reaction or response to the disclosure made by the accused, Bheza

replied that whatever happens in another man‟s house is no concern of his. He maintained he did not express concern because the accused‟s used the words “effentjies geslaan” and said that he wanted to go to Bedford to get medication.

[47] Bheza stated that on the Saturday night he noticed that the front door of the cottage was open. The light of the bedroom occupied by the accused and the deceased was switched on and so was the light in the dining room. From what Bheza stated it is understood that the bedroom window and the dining room window of the cottage faces the direction of his home. He also stated that he heard a woman screaming but did not draw any conclusions from this because he is accustomed to hearing this. His explanation for not mentioning this in his examination-in-chief is that he answered questions only in a manner that he thought was relevant. Furthermore he stated that this particular aspect, the screaming, was mentioned in his statement to the police.

[48] On the accused‟s version being put to Bheza, Bheza denied that the accused returned to the farm on Sunday, he denied that the accused and the deceased visited his home on Monday morning and denied that the deceased asked Nosithembele for beer, and further denied that the accused on his own went to see the owner of the farm. Bheza confirmed however that from the owner‟s place both he and the accused went off together because the accused wanted to see a moneylender, and at the moneylender‟s place the accused purchased bottled wine. From there, Bheza confirmed that he and the accused went to his (Bheza‟s) home. It was put to Bheza that the accused made arrangements to return much later to the moneylender to collect the amount of R200,00 borrowed. Bheza maintained that the accused acquired the money immediately on their first visit. He also noticed that the money consisted of two R100,00 notes. It was put to Bheza that when the accused and him arrived at Bheza‟s home, Van Rensburg was already at Bheza‟s. Bheza denied this, saying that Van Rensburg visited earlier during the day and came back much later that night.

[49] It was put to Bheza that the accused would say that both he and the wife were drunk. Bheza denied this and added that Nosithembele went out to look for wood. (Suggesting by implication that had she been drunk, she would not have been able to do so).

[50] Bheza was also asked when exactly did the accused drop the jug. Bheza responded that the accused dropped the jug when Nosithembele asked about the deceased. At that moment the accused started shaking and it was then that he dropped the jug. It was put to Bheza that the accused would say that he did indeed drop the jug but he denies having told Bheza‟s wife that he assaulted or hit the deceased.

[51] It was put to Bheza that after the accused and Van Rensburg came to their own cottage it was only thereafter that the accused,

accompanied by Van Rensburg, proceeded to obtain a loan from the moneylender. Bheza denied this, saying that by the time he returned

with the accused the loan had already been made.

[52] It was put to Bheza the reason the accused left for Bedford was because he needed to fetch his workmen. Bheza persisted that the accused‟s reason for going to Bedford was to obtain medication for the deceased.

[53] It was once again put to Bheza that the accused will deny having admitted that he hit the deceased. Bheza persisted in maintaining the contrary.

[54] On being cross-examined on the relationship between the accused and Van Rensburg, Bheza maintained that it was none of his business. Also put to Bheza was that he and the accused did not get along due to the incident between Charles and Llewellyn, and in particular that Nosithembele held a grudge against the accused. Bheza denied this and responded that the only reason why he and his wife attended court was not to waste time but to tell the truth.

[55] The conspiracy among Bheza, Nosithembele and Van Rensburg was also put to Bheza who denied it and protested that Van Rensburg would never permit such a thing to be done to his own son.

[56] Bheza also confirmed that he could not say with certainty that it was the accused who assaulted the deceased, but could only confirm that the information concerning the assault was relayed by the accused. In this regard he maintained that he does not bare any grudge against the accused and repeated once again that he came to court to tell the truth and not to waste time.

[57] When re-examined, Bheza stated that the accused habitually assaulted the deceased. He never personally saw the accused assaulting the deceased but could only draw such a conclusion from the fact that he saw the deceased with bruises and swelling on her body. He attributes the accused‟s use of dagga and drugs to the accused‟s habitual assaults on the deceased. Bheza stated that the deceased would often say that when the drugs ran out then her life would be miserable. Bheza also stated that there had been occasions when the accused would smoke dagga in his presence. Once the accused has had a smoke he was in a state of euphoria and both he and the deceased would be laughing. Bheza clarified that the deceased only smoked tobacco. Bheza once again repeated that he heard a woman screaming the Saturday night at about 8 o‟clock. He was outside and the screaming came from the direction of the cottage then occupied by the accused and the deceased. Bheza said he was unsure if there were a series of screams because he went into his house and closed the door. He was in any event “lekker gedrink”.

[58] The State called no further witnesses and before closing its case a list of admissions in terms of Section 220 of the Criminal Procedure Act, 51 of 1977 was read into the record. The list is marked as “Exhibit D” and its content was confirmed by both the accused and his counsel, Mr Geldenhuys. The admissions entail the following :

· “That the deceased person referred to in the indictment, was Belinda Olivier, an adult female person.

· That the deceased‟s body sustained no further injuries since the time of her death, on the evening of Monday 5 October 2015, until such time that a medico-legal post mortem examination was performed

thereon by Dr. Jan Antonie de Beer on 09 October 2015.

· That the said Dr. de Beer removed nail clippings from the deceased during the said examination, which clippings were forwarded to the South African Police Service in Platterkloof, Cape Town, where they

were correctly analysed and compared to a DNA control sample taken from the accused. The analyses correctly concluded that the

deceased‟s nail clippings contained human DNA which originates from the accused person.

· That the accused was arrested by the South African Police at his grandmother‟s house in Bedford on the night of 5 October 2015.”

[59] The accused testified that he is 34 years old and completed Standard 5. He testified that he is a resident of Bedford and that he was involved in a relationship with the deceased since 2005. Both he and the deceased lived together as man and wife although they were not married.

[60] On Saturday 3 October 2015 both he and the deceased were in Bedford where he visited his father Van Rensburg. After visiting his father both he and the deceased proceeded to his grandmother‟s place where he met up with an aunt and an uncle. He stated that he and the deceased spent the night in a private room at his grandmother‟s place. His evidence was that the deceased felt sexually aroused and started grabbing him. The parties had sexual intercourse before falling asleep. The following day, Sunday 4 October 2015 both he and the accused went back to the farm Bulkraal. They were tired.

[61] The accused woke up the Monday morning (5 October 2015) to go to work. He stated that both he and the deceased went to Bheza‟s

place. At Bheza‟s the deceased asked Nosithembele for beer. Apparently Bheza was not home at the time and the accused then left the deceased who according to him was drinking beer. The accused said he proceeded to the house belonging to the owner of the farm. When he arrived, a prayer session was in progress after which he spoke with the owner of the farm. After their discussion he went on his way and upon arriving at the workshop where tractors are kept, he met Bheza emerging with a saddle. From there they both proceeded to the house of a moneylender.

[62] At the house of the moneylender Bheza asked the latter for the 2 litre bottle containing the remainder of wine that was consumed the previous night. The accused stated that he asked the money lender for R200, 00 so that he could go and fetch his “boys”.

According to the accused the moneylender told him to return at about midday when the loan would be made once the moneylender‟s wife returned from work. The accused agreed to do so and both he and Bheza then proceeded to Bheza‟s home while he (the accused) carried the saddle for Bheza. According to the accused when he arrived at Bheza‟s home his father, Van Rensburg, was already there.

[63] While in the process of Bheza handing over a jug of beer to the accused, the accused explained that the jug let slip and fell to the ground. His explanation was that this occurred whilst he was facing his father Van Rensburg and talking to him but simultaneously

reaching out in Beza‟s direction to take the jug.

[64] The accused stated that Nosithembele was asleep, and when the jug fell he apologised to Bheza saying “sorry Oom”. According to the accused Bheza told him not to worry about the spilt beer as Nosithembele would wipe it off the floor when she woke up. The accused stated that he then offered wine from the bottle which he was carrying to Bheza, Van Rensburg and to Nosithembele; upon which Beza stated that the wine would make her drunk. After the men had drank the wine the accused stated that Bheza requested him and Van Rensburg to take along the saddle and the horse, which horse was supposed to be released somewhere on the lands. He stated that when he and his father left Bheza‟s home, his father rode the horse while he walked alongside carrying the saddle. The accused stated that they went to his cottage. Van Rensburg did not enter but went on with a view to releasing the horse onto the lands. The accused stated that upon entering the cottage he observed Belinda was sitting on a chair doing needlework. He told Belinda that he went to the moneylender but would have to go back to the moneylender at noon. At that point Van Rensburg had not yet entered the house. However, when Van Rensburg entered the house the accused stated that he poured wine but Belinda did not want of the wine because she had a soft drink. Both he and his father Van Rensburg drank the wine. He said that he and Van Rensburg sat around until 11 o‟clock at which point he told Van Rensburg that he had to return to the moneylender.

[65] At the moneylender‟s place the accused said that he acquired R200,00 from the moneylender‟s wife. He stated that his father Van Rensburg accompanied him as well. When the loan was made he bought a bottle of wine. He stated that at no stage did he mention or say anything about going to Bedford to get medication. After handing over the bottled wine to his father he left for Bedford but before doing so he told his father to chop firewood.

[66] He confirmed that on Monday night he was arrested at his grandmother‟s place in Bedford.

[67] He said that the last time he saw the deceased, there was nothing wrong with her she was physically well and had no injuries. He also stated that he never assaulted her in any way whatsoever. He also emphasised that there was no spade in the cottage.

[68] During his examination-in-chief he stated that Bheza and Nosithembele had conspired to give false evidence against him during this trial. Their motive for doing so emanated from the fight between their son Charles and Llewellyn. He stated that Charles, pulled out a knife. Because Llewellyn and the accused are brothers, the accused found it necessary to intervene in coming to the assistance of his brother. The accused stated that this incident occurred approximately three months before (the passing of the deceased) and since then both Bheza and Nosithembele have been angry at him.

[69] He testified that Van Rensburg would also have a motive for giving false evidence against him in this trial because they never had a good relationship. Van Rensburg did not like the idea that the accused was leader of the team. Another reason why Van Rensburg would have a motive for falsely implicating the accused, is that both he and Van Rensburg have different surnames and Van Rensburg never regarded him as a son.

[70] The accused believed that Van Rensburg killed the deceased because Van Rensburg was the only one with her when he left for Bedford which was roundabout midday that Monday.

[71] The accused‟s explanation for his DNA underneath the deceased‟s nails, was to the effect that the night he and the deceased spent at his grandmother‟s place, the deceased grabbed at him because she was sexually aroused.

[72] On the Saturday while in Bedford he stated that he bought a bottle of rumba. He and the deceased proceeded to Van Rensburg‟s house. The deceased did not drink of the rumba and he sent Van Rensburg to buy a bottle of wine. They drank at Van Rensburg‟s home whereafter the accused and the deceased visited her mother. From there they ended up at the accused‟s grandmother where they spent the night.

[73] The accused give a history of his employment at Bulkraal. It is considered unnecessary to traverse this. He knows Bheza and

Nosithembele, and although the deceased would visit them, he would not go to their home for a social visit except for work related

matters. He avoided Bheza and Nosithembele because of the incident involving Charles and his brother Llewellyn. It was put to the

accused that Bheza testified of occasions when the accused visited his home. The accused‟s response was that Bheza made a mistake. When asked why such evidence from Bheza was not contradicted, the accused replied that he did not know that he could contradict the evidence because his counsel never told him that he could challenge the evidence. On this aspect of Bheza‟s evidence regarding visitation, the accused proffered an illogical response to the effect that Bheza had the telephone number of the owner of the farm.

[74] He confirmed that both he and the deceased were involved in a relationship with each other for more than ten years. He said that they loved each other but was clearly evasive on being questioned about whether they ever argued.

[75] It was put to the accused that Van Rensburg testified that the deceased told him that the accused had assaulted her. The accused

denied this and said that Van Rensburg was lying. He was questioned at length about when problems between him and Van Rensburg had developed. Once again he did not state the obvious by indicating when exactly problems had started. He responded by saying that Van Rensburg did not treat him like a son. He also spoke about Van Rensburg‟s attempts to press him at work because Van Rensburg was not happy with his leadership of the team.

[76] He was pertinently asked about whether Van Rensburg ever told him that the accused was not his son. His response was “ek het gedagtes gehad”.

[77] He was asked if Van Rensburg ever fought with him, to which question he responded that he would always turn his back whenever that happened. He also mentioned an incident alleging, Van Rensburg tried to stab him with a knife on a Saturday sometime before coming to Court (presumably in connection with this case). The accused also stated that the people in the area are aware of the manner in which Van Rensburg treats him and that at times Van Rensburg would chase him away from the house.

[78] Regarding the relationship between Van Rensburg and the deceased the accused testified that this was good. He stated however that whenever Van Rensburg swears at him then he would swear at the deceased.

[79] The accused stated that Van Rensburg was jealous of him because at some stage, according to the accused, Van Rensburg went to the owner of the farm and complained about the deceased living in the same house with the accused and the rest of the team. According to the accused, this complaint caused him and the deceased to move out of the cottage and assume lodgings in another cottage located elsewhere on the farm. He stated that his happened during the four month period that the team had been working on the farm. This was not put to Van Rensburg during cross-examination.

[80] The accused was asked whether at the time of the passing of the deceased‟s the three of them (i.e the accused, Van Rensburg and the deceased) lived together. This question elicited no clear response.

[81] The accused testified that approximately two weeks before the deceased‟s passing both he and her moved into what he described

as “die pomphuis”, this due to Van Rensburg‟s ongoing complaining about the two of them living together. He stated that Van Rensburg did not give them any rest and was a constant source of trouble. The accused stated that the relationship between him and Van Rensburg was bad enough to have caused him and the deceased to move into the “pomphuis” where they would be on their own. Whereas all the state witnesses knew that the accused, Van Rensburg and the deceased lived together,

it was put to the accused why the evidence in that respect was not challenged and why it was never put to them that he and the deceased moved to the “pomphuis”. The accused‟s response was that this aspect was not included in his statement to his legal representative and that he did not know he could challenge the evidence of the State witnesses. He maintained this standpoint for most of his cross-examination on this and other aspects not pertinently traversed with the State witnesses. It is added parenthetically that any insinuation by the accused that he was not competently represented is disingenuous. It was pertinently put to the accused that the story relating to the “pomphuis” was a fabrication. He denied this.

[82] The accused elaborated about Van Rensburg‟s jealousy stating that it was work-related and had also a lot to do with the fact that he could afford things, such as music, which Van Rensburg could not. In addition the living arrangement with the deceased was also a factor.

[83] On being asked on whether Van Rensburg was jealous of the deceased, the accused‟s response was that he did not notice. In this regard it was put to the accused that Bheza testified that Van Rensburg was very happy about the deceased living amongst them because she cooked meals and ran the household. The accused stated that he heard such evidence and on being questioned about why such evidence was not challenged he resorted to the habitual recitation that he did not know that the evidence could be challenged. When pressed about whether he instructed his defence counsel that Bheza would be lying about that aspect, he stated that he either did not know that he could have instructed his counsel or that he could have forgotten to do so. It was therefore put to him that he fabricated his evidence in asserting that Van Rensburg was jealous and that he intended to portray the relationship between him and his father as something far worse than it actually was. The accused denied this.

[84] In the light of his evidence that he knew the deceased for more than ten years the question was put to him that why would he, in those circumstances live with Van Rensburg. The accused then stated that he lives all over including at his grandmother‟s place. He was pertinently asked why did he even visit Van Rensburg the Saturday and have drinks with him, to which the accused responded that the house is the first one around the corner but the house in any event does not belong Van Rensburg. He went on to suggest that his visit should be seen as something indicative that he bears no grudge against Van Rensburg; instead things are the other way around.

[85] Having stated that Van Rensburg does not regard the accused as his son, the accused was asked if that made him angry. The accused did not answer this question. Instead he responded that Van Rensburg is not a normal person. He went on to say that Van Rensburg swears at people out of the blue as it were, that he talks to trees and imagines things. He believes that Van Rensburg has a psychological

problem. It is once again clear that this aspect of the evidence was never put to Van Rensburg nor to any of the other witnesses who testified they knew Van Rensburg.

[86] When confronted by Bheza‟s evidence that the Saturday night the lights in the accused‟s cottage were switched on and the door was open, the accused agreed that the lights were indeed switched on. He did this to convey that the house was not unoccupied but disputes that the front door was open. He said that he exited through the back door of the cottage but did not clarify whether he left that door open or unlocked.

[87] Regarding Bheza‟s evidence that he saw the accused standing outside the cottage on the Sunday morning, the accused replied that Bheza was lying. The accused maintained that he stood outside the cottage on Sunday afternoon.

[88] Regarding relations between himself and the deceased during the weekend, the accused stated that there was no problem between them neither on the Saturday nor the Sunday. He stated that on the Sunday both he and the deceased were asleep for most of the day; they woke up at about 3 o‟clock that afternoon.

[89] The accused stated that the Sunday morning on returning to the farm both he and the deceased first went over to Bheza before going to their own cottage. The accused was not drunk nor was the deceased. The deceased wanted beer from Nosithembele. Bheza was asleep at the time. The accused stated that they did not enter Bheza‟s home but stood outside. It is understood that the deceased drank the beer while standing outside. Thereafter the accused maintains that both he and the deceased her went to their own place and slept until about 3 in the afternoon whereafter the deceased prepared a meal. In the light of this evidence it was put to the accused that during his examination-in-chief he mentioned nothing about the visit to Bheza‟s home on Sunday morning. The accused‟s response was that he did say so but counsel for the State probably did not write it down. It was put to the accused that he did not mention anything about the visit to Bheza‟s home on the Sunday, nor was that evidence put to Bheza and particularly, Nosithembele.

[90] The accused stated that the Sunday morning both he and the deceased had sexual intercourse before falling asleep. According to the accused the deceased behaved no differently than she did the previous night in Bedford. He stated that this was not mentioned in his evidence-in-chief because he had forgotten to do so. They slept until about 3 o‟clock the Sunday afternoon. The deceased prepared a meal and the accused stated that at some point he briefly stepped outside. He did not go anywhere and both he and the deceased slept until Monday morning. There was no argument between him and the deceasd on the Sunday.

[91] On Monday morning things were still normal between the two of them. They both woke up together. They did not make a fire in their cottage. They went over to Bheza‟s. Bheza was not there. They met Nosithembele from whom the deceased asked to have some the beer which they had the previous day. The deceased stood at the door and neither she nor the accused went inside. Nosithembele came out with the jug. The accused explained that the reason he did not go into the house was because he was in a hurry to go to work. He stated that when he left Bheza‟s home he was not sure if the deceased subsequently went inside.

[92] It was put to the accused that both Bheza and his wife stated that the deceased did not come to their home on the Monday morning. The accused disputed this. He could not think of a reason why this evidence came from Bheza and Nosithembele but maintained that it is an untruth.

[93] The accused said that he denied having told Nosithembele that he hit the deceased. He also denied having told Nosithembele that he was sorry about this.

[94] When confronted by Bheza‟s evidence that both he and the accused went to the owner‟s house together, the accused maintained that he met Bheza at the workship as testified earlier. After visiting the moneylender both he and Bheza proceeded to Bheza‟s house. At this point of the cross-examination, the accused stated that on arrival at Bheza‟s he met one of his “boys”, namely Van Rensburg. It was put to the accused that it was odd that he would refer to his father Van Rensburg as one of his “boys”. The accused said that he did not think anything peculiar of this because his father works under him just like the rest of the members of the team.

[95] Considering that the State witnesses testified that the accused drank liquor on each occasion that he was at Bheza‟s place the Monday, it was also put to the accused that it was peculiar why he accepted the beer which Bheza offered when all along he maintained that he does not get along with Bheza or with Nosithembele. The accused stated that he did not know why he did this but Bheza was in any event drunk and because Van Rensburg was there he (the accused) thought that nothing would happen to him. Once again it was put to the accused that this evidence was illogical and did not fit in with his version in chief.

[96] Regarding the fallen jug, the accused‟s evidence was to the effect that the jug fell simultaneously when Bheza handed it to him and he, in an endeavour to reach out to it with his right hand, let slip while he was facing Van Rensburg. He stated that he never held the jug with both hands as described by the State witnesses and that he never shivered.

[97] Because the jug had fallen and beer was spilt, the accused decided to offer the wine which he carried in his bottle. This was the bottle he bought from the money lender. He stated that Bheza did not want him to pour wine for Nosithembele because it would make her drunk. He said the only reason he offered wine was because he felt guilty about having spilt the beer.

[98] When asked about what did he, Van Rensburg and Bheza discuss that Monday morning, the accused stated that Bheza requested he and Van Rensburg to take the horse back to the lands. This was because Bheza wanted to go and sleep. According to the accused when they left Bheza‟s place Van Rensberg rode the horse and he carried the saddle. Once again this evidence differs with what Van Rensburg said; it being Van Rensburg‟s version that he carried the bridle and walked.

[99] On arrival at the cottage the accused said that he first entered; whereas on Van Rensburg‟s version was the contrary. The accused said that when he came into the house he observed Belinda sitting on a chair and doing needle work. There was nothing a matter with her. She was not lying down nor did she have any injuries. The accused said that he poured wine from his bottle but Belinda did not want any because she had a soft drink. Both he and Van Rensburg drank and chatted. When they finished drinking, the accused stated that he made breakfast by cooking chips and vetkoek.

[100] It was put to the accused that Van Rensburg said that when he got to the cottage the deceased was in bed and had told him what had happened. The accused denied that the deceased was in bed. He maintained that she was seated doing needle work. On being questioned about what did he and Van Rensburg discuss while they were drinking, the accused stated that the discussion was about workers who did not pitch for work. Throughout this discussion he maintained that the deceased was busy and nothing happened to her, neither did anything happen by way of an argument between Van Rensburg and the deceased, nor did Van Rensburg and the deceased speak to each other. After the meal the accused stated that he went to the moneylender and Van Rensburg accompanied him. At the moneylender‟s place the accused bought a bottle wine for Van Rensburg. At about midday the accused said he left the farm and went back to Bedford to go and look for his workers. When he arrived in Bedford it was round about 3 o‟clock in the afternoon. He went to the location where he met Llewellyn and Patrick. They told him they had money and he accepted that they would then be in a position to get back to the farm. From thereon the accused went on to his grandmother. Precisely why he did so, is not entirely clear, but when he got to her place she was not there but he met an uncle who happened to be there. They

started drinking and at some point when his grandmother returned she joined them and the three of them continued drinking until such time as the accused felt “floored”. At about 10 o‟clock that Monday night his grandmother suggested that it was too late for him to return to the farm and it was appropriate that he stayed over. He confirmed that he was arrested at his grandmother‟s place that same night. Having said that he went to Bedford to look for his workers, it was put to him why did he not return with them to the farm the very same day. His response was that it was already late to which the imputation was put that the reason, or at least the motivation for going to Bedford, had long disappeared.

[101] It was put to the accused that he went to Bedford to get help for the deceased; he denied this.

[102] As for the deceased‟s time of death, it is the accused‟s version that whoever notified the police of her death was the person who committed the deed which meant that it could only have happened the Monday night. That being his case, it was put to the accused that whoever had conspired against him would have had very little time in which to hatch the plot. Once again this elicited no favourable response from the accused. On being asked if he had any idea what could have gone wrong when he left the farm on Monday, he said that he did not know. He stated however that when the police informed him of Belinda‟s death he was shocked.

[103] The accused stated that the tools used by the team are usually stored in the same cottage in which they lived. Included amongst the tools was a saw, a pliers and a drill. While admitting that the erection of a fence required use of a spade for digging holes in which poles would be positioned, he denied vehemently that a spade was amongst the tools stored in their cottage. On being questioned about how he would go about doing his work if he did not have a spade amongst his tools, he stated that he would use the spade belonging to the owner of the farm. The spade is taken from the workshop and once it is used it would be returned to the workshop. This evidence suggests that the accused had access to a spade. Accordingly it is not necessary to make a finding that a spade was stored in the cottage in which he lived with the deceased. In point, the accused did not dispute it when it was put to him that he had access to a spade.

[104] In summary, the accused denied that he assaulted or hit the deceased with a spade, or that the assaulted or hit her at all. He denied having admitted the assault to the State witnesses or that he admitted having hit the deceased. He denied that he hit or assaulted the deceased in a reckless manner without consideration as to whether or not she would survive. He denied having inflicted injuries on the deceased in consequence of which she died. He denied having said to any of the State witnesses that he required money to purchase medication and further denied that he borrowed money to arrange transport for the deceased. The accused re-iterated that there was a conspiracy amongst Nosithembele and Bheza to give false evidence against him in these proceedings. Van Rensburg was part of this conspiracy but also had improper motives of his own regarding his treatment and dislike of the accused.

LEGAL

PRINCIPLES AND ASSESSMENT

[105] When assessing the evidence to determine if the State has discharged the onus, it is trite that a court must look at all the evidence holistically to determine whether the guilt of the accused is proved beyond reasonable doubt. Breaking down the evidence in its component parts is not excluded as a convenient aid to a proper evaluation and understanding thereof. In S v Shilakwe 2012 (1) SACR 16 (SCA) at paragraph [11], the following caution was sounded :

“But in doing so, (breaking down the evidence in its component parts) one must guard against a tendency to focus too intently upon the separate and individual part of what is, after all, a mosaic of proof. Doubts about one aspect of the evidence led in the trial may arise when that aspect is viewed in isolation. Those doubts may be set at rest when it is evaluated again together with all the other available evidence. That is not to say that a broad and indulgent approach is appropriate when evaluating evidence. Far from it. There is no substitute for a detailed and critical examination of each and every component in a body of evidence. But, once that has been done, it is necessary to step back a pace and consider the mosaic as a whole. If that is not done, one may fail to see the wood from the trees.”

See also S v Hadebe & Others 1998 (1) SACR 422 (SCA) at 426 F-H and

S v Mbuli 2003 (1) SACR 97 (SCA) at 110, para [57].

[106] It is also trite that no onus rests on an accused to convince the court of the truth of any explanation which he gives. He should be acquitted if there exists a reasonable possibility that his evidence may be true. Whether a court subjectively believes the accused is not the test. A court does not have to reject the state case in order to acquit an accused. A court is bound to acquit him if there exists a reasonable possibility that his evidence may be true (S v Van Der Meyden 1999 (2) SA 79 (WLD) 80 I-J and 81 D; (R v Difford 1937 AD 370 at 373; and S v Kubeka 1982 (1) SA 534 WLD at 537 F- G).

[107] The thrust of the dicta emanating from the authorities referred to is that the approach adopted when assessing evidence entails a weighing of all the elements pointing towards the guilt of the accused against those elements indicative of his innocence. In this process, the inherent strengths and weaknesses, probabilities and improbabilities on both sides must be properly considered, and once having done so, it must be determined whether the balance weighs so heavily in favour of the State such that it excludes any reasonable doubt that the accused is guilty (S v Chabalala 2003 (1) SACR 134 (SCA) paragraph [15]). In the latter instance, only then will the onus be discharged.

[108] The process of reasoning which is appropriate to the application of these principles in any particular case will also depend on the nature of the evidence the court has before it (S v Van Der Meyden supra at page 82 D and S v Van Aswegen 2001 (2) SACR 97 (SCA) at 101d).

[109] In the present matter there is no direct evidence in the commission of the offence. The State relies on hearsay evidence, an extra-judicial (informal) admission and circumstantial evidence.

[110] The hearsay evidence is traversed in the allegation by the witness Van Rensburg that he was told by the deceased that the accused hit her with the flat side of a spade. Section 3 of the Law of Evidence Amendment Act 45 of 1988 permits the admission of hearsay evidence if a court is of the opinion that it is interests of justice to do so. However, the section enjoins a court to have cumulative regard to the specified considerations mentioned in section 3(1)(c) (S v Mbanjwa & Another 2000 (2) SACR 100 (D&CLD) at 110 i-j; S v Shaik & Others [2006] ZASCA 105; 2007 (1) SACR 247 (SCA) at parapraph [170]). Each of these considerations are dealt with below in the order corresponding with paragraphs (i) - (iv) of section 3(1)(c) of the Act.

(i) The nature of the proceedings: Where criminal proceedings are concerned, the gravity of permitting untested evidence against an accused should not be underestimated. For this reason courts are intuitively reluctant to permit untested evidence to be used against an accused in a criminal trial (S v Ramavhale 1996 (1) SACR 639 (AD) at 647 h-j; S v Shaik supra at [171]; S v Mbanjwa supra at 111a)

(ii) The nature of the evidence : The evidence is of an incriminating nature against the accused. Nothing further needs to be said on this aspect.

(iii) The purpose for which the evidence is tendered : Seemingly, the evidence is tendered for the purpose of identifying the accused as the deceased‟s assailant and the instrument used. If admitted, the evidence could corroborate the evidence of the state witnesses Van Rensburg, Nosithembele and Bheza, including to an extent, the medical evidence in relation to the instrument used. It seems that the purpose of the evidence is to prove that there is no reasonable possibility that the version of the accused is true. Accordingly, this evidence is of importance for the State‟s case. Its reception however is not dependant on its importance, but rather its truthfulness and reliability (S v Mbanjwa supra at 111 e- f).

(iv) The probative value of the evidence : This is considered under two heads, namely (a) the reliability and completeness of Van Rensburg‟s transmission of the deceased‟s words and (b) the reliability and completeness of whatever it was that the deceased said to him (Mbanjwa supra at 111g).

On the issue of the reliability and completeness of the evidence of Van Rensburg, the following bears mentioning :

· Van Rensburg is the accused‟s father. Emotionally It must have been particularly difficult for him to have testified against his own son. Despite imperfections in his evidence in peripheral respects, he cut a reasonably good impression in the witness stand and appeared truthful;

· There is no indication that he could have prompted the deceased on what to say. He testified that there was a spade in the room. The mention by the deceased of a spade has a ring of truth to it;

· Van Rensburg also knew the deceased for a long time and all indications are that they got along very well. His questioning of the deceased seemed logical; “Ek vra wat makeer”

On the second issue which concerns the reliability and completeness of the what the deceased said to Van Rensburg, it is of importance to bear in mind that hearsay evidence „was long recognised to tend to be unreliable and continues to tend to be so‟ (Mbanjwa supra at 112 d). In considering the reliability and completeness of what the deceased said the same factors as in Mbanjwa (at 112) are employed :

· Sincerity : On the version of the accused both he and the deceased had a long standing relationship. The accused said he loved her. It is considered improbable for the deceased to falsely implicate him.

· Memory and Perception : The accused stated that he and the deceased returned to the farm on Sunday. Between that day and the time of her death, (deducing from Bheza‟s estimation that Van Rensburg came over Monday night at about 8 o‟clock, the time of death would probably have been the same night but before 8 o‟olock), it is unlikely that the deceased would have forgotten events or to have been mistaken of the identity of her assailant. More particularly, it is unlikely that she could have been mistaken about the instrument used, nor as to how it was used.

· Narrative capacity : On Van Rensburg‟s evidence it is deduced that the deceased was clearly able to relate to him in a rational manner; firstly, when she responded “Ja Oom ek is hier”; secondly, when she asked for a cool drink; and thirdly, when she told him about the assault.

(v) The reason why the evidence is not given by the person upon whose credibility the probative value of the evidence depends : The deceased could obviously not testify in these proceedings.

(vi) Prejudice : It is acknowledged that the accused clearly does not have the opportunity to test the reliability of the statement made by the deceased. This is prejudice of a procedural nature. It affects the right to cross-examine and does not have the automatic consequence that the hearsay evidence is inadmissible. Where such evidence is admitted in the interests of justice, the resultant strengthening of the State‟s case does not resonate prejudice since the reliability of the evidence is such that its admission is necessarily justified.

(vii) Any other factor : The deceased‟s statement may be akin to a dying declaration or a spontaneous statement but it is considered unnecessary to determine conclusively whether the deceased‟s statement would have qualified as such (cf. Mbanjwa supra at 113 g-j)

[111] As mentioned, the case for the State is also dependent on an extra-judicial or informal admission. An admission is a statement

adverse to the person who makes it. To the extent considered relevant, section 219A(1) of the Criminal Procedure Act 51 of 1977 reads as follows :

“Evidence of any admission made extra-judicially by any person in relation to the commission of an offence shall, if such admission does not constitute a confession of that offence and is proved to have been voluntarily made by that person, be admissible in evidence against him at criminal proceedings relating to that offence.”

[112] The requirement for the admissibility of an extra-judicial admission is that it must be voluntarily made. In practice its proof requires that the admission was made freely and that there was no undue influence in a sense that it has not been induced by any promise or threat proceeding from a person in authority (see generally Kruger, Hiemstra‟s Criminal Procedure, Lexisnexis [Issue 1] at page 24-72)

[113] Regarding the admission by the accused, there is an element of uniformity in what the State witnesses have said in their evidence:

Van Rensburg‟s words of what the accused did say are that he had “effentjies met haar gebaklei” and “haar met die platkant van a graaf geslaan”.

Nosithembele‟s recollection is that the accused said : “Ouma ek het haar nie baie hard geslaan” .. “Ek het haar effentjies geslaan met „n graaf … Ouma jy moet asseblief nie kwaad raak nie” .. “Ek het haar net so effens geslaan met die graaf.”.

Bheza‟s words were to the effect “hy se my vrou moet nie kwaad word .. hy het vir Belinda met „n graaf geslaan”.

[114] The repeated use of the word “geslaan” by the witnesses van Rensburg, Nosithembele and Bheza, conveys that the accused “hit” the deceased. They mention that he used a spade. From their evidence it is understood that the State relies on the admission by the accused that he hit the deceased with a spade.

[115] From the summaries of the evidence by the State witnesses it is acknowledged that there are inconsistencies, albeit in peripheral

respects. This does not suggest that their evidence should be disregarded entirely. Respectfully, the witnesses are not sophisticated persons and the peripheral imperfections in their evidence, as correctly contended by counsel for the State, are a reflection of their honesty. The witnesses presented their evidence in a confident and unbiased manner. It is thus accepted that in so far as the material aspects of their evidence traverses the admission relied upon by the State, they were reliable and credible.

[116] The question to be decided is whether the admission was voluntarily made by the accused.

[117] The evidence indicates that on the Monday morning the accused consumed liquor, albeit in unknown quantities, on occasions when he was at Bheza‟s home. Nothing in the evidence suggests that the accused lacked the volition to appreciate his disclosure. In point, the accused merely denied having made the admission, nor did he suggest in any manner during the trial should it be found that he made the admission, then in that event his mental faculties were compromised due to his intake of liquor.

[118] On each of the occasions that the accused was at Bheza‟s home that Monday, he was invited inside. Bheza offered beer and Nosithembele made conversation with the accused. All indications are that Nosithembele and Bheza were in a hospitable and conversational

mood, and it is assumed so was Van Rensburg. The accused‟s admission came forth in response to an observation by Nosithembele

regarding the absence of smoke from the accused‟s cottage and her asking about the deceased. Although referring to Nosithembele as “Ouma” there is no indication that the accused was intimidated by her presence or that she assumed a position of authority over him. Furthermore, nothing suggests that the accused was afraid of Bheza and / or Van Rensburg, and that either Bheza or Van Rensburg or perhaps both of them threatened or intimidated the accused.

[119] In so far as the admission made by the accused is qualified by the word “effentjies”, the medical evidence clearly ruled out the possibility that the deceased could have sustained her injuries through the application of a slight degree of force. On the contrary, Dr De Beer stated that considerable force “redelike geweld” could not be excluded. Of importance is that the medical evidence does not exclude use of an instrument such as a spade as the cause of the fatal injury. In the circumstances, a finding that the accused‟s admission may be exculpatory on the basis that a slight degree of force was used, cannot be made. Accordingly the admission that the accused hit the deceased with a spade cannot be excluded from the evidence.

[120] The accused was not an impressive witness. The record reflects numerous occasions when he was requested to speak audibly and in a measured tone. The accused often spoke as if whispering to himself. Because the accused never stated that this was his manner of speaking he was respectfully cautioned that if he persisted in whispering there was a risk that his evidence would not be properly heard. In addition, the accused‟s evidence under cross-examination patently reflects that he gave long winded and rambling responses to fairly straightforward questions which required a clear and concise response. The accused‟s long-winded responses were at times meaningless, off the point and at times blatantly evasive. He did not cast a favourable impression and all indications are that he was dishonest and evasive.

[121] The accused‟s denial of the offence is premised on a conspiracy, on the one hand involving his father Van Rensburg, Bheza and Nosithembele regarding the assault of their son Charles, and on the other hand, Van Rensburg‟s dislike of the accused and the constant attempts by Van Rensburg to undermine the accused‟s position as leader of the team. Van Rensburg had no reason to dislike the accused. They socialised and drank together and Van Rensburg appreciated the efforts made by the accused in procuring work for the team. As for the accused‟s suspicion that Van Rensburg killed the deceased, the accused on his own version stated that the deceased and Van Rensburg had a good relationship. On the probabilities, it is unlikely that Van Rensburg would have any reason to give false testimony against the accused. Van Rensburg was a good witness notwithstanding the criticism levied against him by counsel for the accused. It must be borne in mind that Van Rensburg is not a sophisticated individual and it must obviously have been very painful for him to have given evidence against his son, the accused. In these circumstances the criticism against him is unfounded.

[122] As for the remaining witnesses Bheza, and his wife Nosithembele, the accused imputes their dislike towards him to the fight between their son Charles and the accused‟s brother Llewellyn. Their son Charles does not live with them and occasionally visits on a weekend. It is reasonable to infer that Bheza and Nosithembele had no knowledge of the incident spoken of by the accused, particularly in that the accused proffered no detail such as the cause of the fight, where and under what circumstances it occurred, and whether anyone might have suffered injury considering that a knife was used. Van Rensburg also had no knowledge of the incident. The absence of the detail mentioned, renders the accused‟s version of a conspiracy unlikely. This is all the more telling considering that Bheza and his wife were on amiable terms with the accused.

[123] The version of the accused suggests that when he left the farm about noon on the Monday, all was well with the deceased; she had no injuries and the relationship between him and her was as good as ever, that her assault and consequent death occurred in his absence and was suspected to have been perpetrated by Van Rensburg. The evidence does not support the accused‟s version for the reason that prior to his departure from the farm the accused made the admission that he hit the deceased. Given the severity of the deceased‟s injuries the medical evidence renders it is probable that she would not have died immediately upon the injuries being inflicted, but that death would have been prolonged for several hours. The Monday morning when Van Rensburg first saw the deceased she was alive; this was also her status when he returned at sunset but then left to look for medication (“gal-bossie”). On his return that night Van Rensburg found her dead. The deceased‟s arm was limp suggesting that rigor mortis had not set in. On Bheza‟s evidence, Van Rensburg arrived at about 8 o‟clock that night. Inferentially, the time of death must have been before 8 o‟clock that night. The prolonged intercession of death does not assist the accused‟s case in any way. He admitted that he hit the deceased with a spade. In any event, the evidence indicates that the accused was the only person in the

company of the deceased throughout the weekend and that at no stage did he leave her on her own. Seen from this perspective the evidence points to the accused as being the only person who can account for what happened to the deceased. His denial that he assaulted her is rendered improbable. The circumstances coupled with the admission made by the accused clearly indicate that there is substantial incriminating evidence against the accused. This is so

even if the hearsay evidence is excluded from consideration.

[124] Accordingly, the accused is found guilty as charged.

________

S

RUGUNANAN

ACTING

JUDGE OF THE HIGH COURT

Appearances:

Counsel for the state : Adv Engelbrecht Instructed by the National Director of Public Prosecutions

Counsel for the accused : Adv Geldenhuys Instructed by the Legal Aid Board, Grahamstown

Dates Heard: 1, 2 and 4 August 2016

Date Delivered: 10 August 2016