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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU NATAL DIVISION, DURBAN                 

Case No: CCD64/2019

 

In the matter between:

 

The State                                                                                                              Applicant

 

and

 

Naveen Chanderlal                                                                                                Accused

 

Judgment

 

Lopes J:

 

[1]             The accused in this matter, Naveen Chanderlal, has been charged with the crime of Murder, read with s 51 and Part 1 of Schedule II to the Criminal Law Amendment Act, 1997. The indictment alleges that on the 24th December 2018 and at 86 Riversdale Road, Silverglen, in the District of Chatsworth, he unlawfully and intentionally killed Vathaniagee ‘Jennifer’ Pillay, an adult female, in circumstances where the murder was planned or premeditated. At the outset of the trial Mr Chanderlal pleaded not guilty and a statement in terms of s 115 of the Criminal Procedure Act, 1977 (‘the Act’) was read out by his attorney. At the conclusion of the reading out of his statement, he confirmed that the facts contained therein could be recorded as admissions in terms of s 220 of the Act.

[2]             Mr Chanderlal’s s 115 statement contained his movements on the 24th December 2018 when his late wife was murdered. He also recorded that the pre- trial investigative procedures infringed his right to a fair trial. I shall refer to the s 115 statement as and when it is necessary.

[3]             The State called 15 witnesses who dealt with various aspects of the matter. I shall set out the evidence of those witnesses in summary only, and I shall omit those parts of the evidence which I regard as unnecessary to the decision to be arrived at. Thereafter, I shall deal with the credibility of the witnesses.

[4]                  The first witness was Pastor Pressely Kisten Pillay, the Pastor of the New Bethesda Full Gospel Church in Westcliff Chatsworth. Mr Chanderlal and his late wife, to whom I shall refer as ‘Mrs Pillay’, ’the deceased’ or ‘his wife’ as appropriate, were known to him as parishioners who had been associated with the church for approximately 25 years’, but had been away in Dubai for approximately 12 years’ and he had close contact with them only during 2017 and 2018.

[5]             At the request of Mrs Pillay he had conducted two meetings with the couple. They were:

 

(a)       In July 2018 they met at the church premises. Mrs Pillay complained that Mr Chanderlal never paid rent. She alleged he earned money from rentals from a property, but did not disclose it to her or speak about it to her. She also indicated that she wanted to get divorced. Mr Chanderlal made no response to these allegations and Pastor Pillay regarded him as a very reserved person. He discouraged them from getting divorced because they were Christians.

(b)       In November 2018 he received a call from Mrs Pillay and went to their home. She reported to him that Mr Chanderlal was in his room and not coming out or speaking to her. At the request of Pastor Pillay, she then called Mr Chanderlal, he came out of his bedroom and spoke to them in the lounge. Pastor Pillay asked him why he was behaving as he was, but he did not reply. Pastor Pillay asked Mr Chanderlal to contact his family, he prayed over them and he then left. At that meeting Mrs Pillay re-iterated that she wished to get divorced and in addition complained that Mr Chanderlal had a tax problem.

Pastor Pillay saw their problems as being principally financial. In cross- examination Pastor Pillay elaborated that the financial problem was partly because Mr Chanderlal was not paying over the rents he collected, into her account when she was away. It transpired that this was when she had gone to Australia to attend the birth of her daughter’s child. Mr Chanderlal had not accompanied her and had remained at their home. Although Pastor Pillay conceded in cross-examination that he did not know precisely why Mrs Pillay wanted to leave the country, it was suggested to him that it was not only finances, but also the fact that Mrs Pillay wanted to take care of her grandchild in Australia. In cross-examination Pastor Pillay also denied that Mr Chanderlal had said at the first meeting that he was giving Mrs Pillay R4000 per month from rentals. When challenged with a statement he had made, he conceded that he had recorded in the statement that although Mr Chanderlal said he was contributing R4000 per month, Mrs Pillay said he was not consistent with his contributions, and the debit orders which were processed against her account, and against which the rentals were to have been set off. Pastor Pillay could not dispute that the debit orders were not going through because the R4000 was being paid on different dates (as the result of the non-payment of some items by the tenants).

 

[6]                The second State witness was Karusha Gyadin Naidoo, an attorney in Chatsworth who met Mrs Pillay at Church. She in fact taught Mrs Pillay’s two children religious instruction. During 2018, and on two occasions, Mrs Pillay spoke to Ms Naidoo about obtaining a divorce. The second time was on the 9th August 2018. Whatsapp communications were exchanged between them on the 24th November 2018, when Mrs Pillay sent Ms Naidoo a message saying that Mr Chanderlal had gone into a depression and she had taken him to a psychologist. She had decided to put the divorce plans on hold until she felt he was strong enough to deal with the matter. Ms Naidoo had also given Mrs Pillay her divorce rates. Mrs Pillay also told her that Mr Chanderlal had been in counselling for his depression for six months’, but she recorded that she could no longer stay in the relationship.

[7]             The third witness was Duggie Perumal, the 64 year old brother of Mrs Pillay. He stated that Mrs Pillay had two children, a son Gino in London, and a daughter Carynne in Australia. He told the court that Mr Chanderlal was not the biological father of the children. Their father had been murdered when the children were very young. Mrs Pillay worked as a nursing sister and she had worked in Abu Dhabi and in Dubai where she and Mr Chanderlal had lived. He described the relationship between Mrs Pillay and Mr Chanderlal as ‘a decent relationship’, and said that they always spoke to each other and were very sociable and always travelled together. Mrs Pillay’s function in going to Australia alone had been because her daughter was having a baby, and as a nurse she thought she could help. It was her first grandchild. Her daughter Carynne had only paid for an air ticket for Mrs Pillay, and not one for Mr Chanderlal. He told the court that Mrs Pillay was going to sell her assets in February 2019, and emigrate to Australia. She owned the house at Riversdale Road. There were tenants in the basement of their home. 

[8]             Mr Perumal had last seen his sister on the 23rd December 2018 at a family gathering. She was in perfectly good health. At 8:15pm on the 24th December 2018 he was telephoned by his sister-in-law Fathima Perumal, who lived in Tongaat. He lived in Newlands West which was very close to Silverglen where Mrs Pillay and Mr Chanderlal lived. Fathima Perumal told him that she had received a call from Gino in London, who had told her there was something amiss at Mrs Pillay’s home. Mr Perumal said that he would go there immediately and he arrived there at approximately 8:30pm. When he arrived he saw a security guard at the main gate. An ambulance was parked outside the house. The security guard opened the pedestrian gate to allow the paramedics to enter the driveway, and the guard and Mr Perumal followed them up a flight of stairs to get to the main house.

[9]             The entry to the main house was a sliding door, which was protected by a Trellidoor sliding gate. They were opened by Mr Chanderlal.

[10]         Mr Perumal recorded that the couple had four dogs which made a lot of noise if any visitors arrived. They were not at the door as they would normally be, to greet people. As they entered Mr Perumal greeted Mr Chanderlal asking where his sister was, and Mr Chanderlal replied that she was ‘lying on the bathroom floor’. At that stage Mr Chanderlal was very shaky, stuttering and his speech was not clear. Mr Perumal stated that he had never seen Mr Chanderlal like that before, and he had always known him to be very sociable. Mr Perumal then followed the paramedics up the stairs to the bathroom, and Mr Chanderlal walked passed the bathroom and turned right into his bedroom. He closed the door.

[11]         At the bathroom door Mr Perumal could see his sister lying on her left hand side against the bath. He saw the paramedics trying to straighten her body to check for vital signs. They examined Mrs Pillay and then told Mr Perumal that she was deceased.

[12]         Mr Perumal commented on the state of the bathroom. In the bath were various items including a laundry basket and shampoo bottles, etc. He said it was very unlike Mrs Pillay to have had the bathroom in such a disordered state. In addition, on the right hand side of the toilet facing him was a soft neck-collar. He knew that Mrs Pillay wore it for a couple of hours in the mornings because she had problems with her neck. He had never seen her wearing it any other time. Mr Perumal then touched Mrs Pillay’s feet and they were ‘stone cold’.

[13]         Upon hearing that Mrs Pillay was dead, Mr Perumal went into Mr Chanderlal’s bedroom and found him lying under the blankets. He pulled away the blankets and shook Mr Chanderlal who made a murmuring sound. He asked Mr Chanderlal whether he knew that Mrs Pillay was dead, but Mr Chanderlal only made a murmuring sound.

[14]         Mr Perumal then went down into the lounge and found Mrs Pillay’s handbag. He picked up the handbag and went towards the couch on the opposite side, laid the handbag down and found a cellphone. He opened the phone and looked at the last dialled numbers. One of the last two numbers dialled was Mr Chanderlal’s brother. He phoned the last two numbers but there was no reply. A few minutes later the second person he had called, phoned back. It was a female and  he  told  her what had happened.   About ten minutes later relatives of Mr Chanderlal, including his brother Pranesh and a female, arrived.

[15]         Mr Prerumal knew that Mr Chanderlal and Mrs Pillay occupied separate bedrooms which were located opposite each other. The dogs had all been contained in Mrs Pillay’s bedroom and when they came out they caused a nuisance by approaching everyone and making a noise. Mr Perumal asked Mr Chanderlal to put the dogs back into Mrs Pillay’s bedroom which he did. Mr Chanderlal then released the dogs again, and Mr Perumal swore at him and asked him to put the dogs back into the bedroom. He did so because they were starting to interfere with the work of the paramedics. When the paramedics were finished dealing with Mrs Pillay, Mr Perumal took a duvet off his sister’s bed and covered her with it.

[16]         After a while Mr Perumal walked around the outside of the house looking to see whether there had been any forced entry or break-in, but everything seemed to be normal to him.

[17]         The fourth witness was Gino Stephen Pillay who testified from the Briarhill Police Station in London. He testified via a video-link, and two uniformed British police officers were present in the room during the time he testified. It was clear that Gino Pillay was very close to his mother and spoke to her regularly. He had called her in the morning of the 24th December and then he had gone out. He received no answers to his Whatsapp messages, and at 5:00pm he started to panic because he was anxious to speak to her as it was Christmas Eve. He continued to call her on her mobile, but had no response. He stated in his evidence that someone answered the phone at 5:15pm (London time, and 7.15pm South African time) and he could only hear breathing. This made him more anxious and he started calling more frantically. It seems clear that this first phone call may have been misinterpreted by Gino Pillay, because the telephone records suggest that it went to voicemail.

[18]         At 7:55pm (South African time) Mr Chanderlal answered Mrs Pillay’s phone which Gino Pillay regarded as being out of the ordinary. He asked him where his mother was and he was told that she was sleeping. He then told Mr Chanderlal to wake her up, and he held on for approximately two minutes. During that time there was total silence and no dog noises. He ended the call and phoned his aunt Fathima Perumal, and told her that there was something definitely wrong at Mrs Pillay’s home. Gino Pillay continued to phone his mother’s number and Mr Chanderlal answered it at 8:05pm (South African time) and he said ‘sorry she is gone’. Gino Pillay then phoned Fathima Perumal and told her what he had been told. In cross-examination Gino Pillay denied that he had said that Mr Chanderlal had told him that Mrs Pillay was ‘out cold on the bathroom floor’. He denied that Mr Chanderlal had said that to him. It transpires from the evidence of Fathima Perumal that it may be that he did in fact say that, because she relayed that to Duggie Perumal when she phoned him, and that was confirmed by Duggie Perumal.

[19]         The fifth witness was Colonel Fathima Perumal. In December 2018 she was a Captain in the South African Police Services. Without intending any disrespect to her rank, I shall continue to refer to her as Fathima Perumal. She testified that at about 8:00pm she had received a call from Gino in the UK who was extremely worried as he had been phoning his mother and sending her Whatsapp messages, but he could not get into contact with her. Gino Pillay related to her the first phone call which he had found very strange. He told her that he regarded it as odd that Mrs Pillay was sleeping as she would have been preparing for Christmas lunch. He asked her to go and see what was going on. He said he would call back shortly.

[20]         In the meantime, Fathima Perumal phoned Mrs Pillay’s landline which was not answered. She then phoned her cellphone which was answered by Mr Chanderlal. She asked him where Mrs Pillay was and he said ‘lying in the bathroom on the floor and she is cold’. He then terminated the call. She then tried to phone again but the phone just rang. Fathima Perumal then telephoned the Bayview South African Police Station and asked them to send a police motor vehicle to the residence, and gave them the address and requested that paramedics attend. She then phoned her brother-in-law Duggie Perumal, who lived close to Silverglen, and asked him to go to Mrs Pillay’s home and that she would meet him there shortly.

[21]         Gino then phoned Fathima Perumal again and he told her that Mr Chanderlal had said that Mrs Pillay was lying on the floor in the bathroom and was cold. At that stage Gino Pillay was crying and Fathima Perumal tried to assist him by telling him to be patient and that she would phone as soon as she arrived at Mrs Pillay’s home. She arrived there approximately 40 minutes’ later. She found paramedics and her brother-in-law Duggie Perumal present, as well as the alarm company driver. The paramedics had finished examining Mrs Pillay and informed her that Mrs Pillay had passed away. Mr Perumal and others were traumatised and shocked to hear of the death of Mrs Pillay. At a later stage she spoke to Mr Chanderlal who seemed not to be emotionally upset. She asked him what had happened, and he did not respond. He also mumbled something which Fathima Perumal could not comprehend. She stated that Mr Chanderlal was very restless, pacing up and down in the passage and removing the dogs from the bedroom. She confirmed the event when Duggie Perumal told Mr Chanderlal to lock the dogs up in the bedroom.

[22]         Fathima Perumal then went to inspect the body of Mrs Pillay, and observed bruises around her arms and neck. She asked the paramedics to have another look at Mrs Pillay and they confirmed her suspicions. In cross- examination Fathima Perumal stated that Gino Pillay was very close to his mother and chatted to her normally every day on more than one occasion. She had arrived at the home of Mrs Pillay between 8:50pm and 9:00pm. Fathima Perumal also noted that the bathroom was in disarray, with toiletries lying in the bath, some of which were broken. The neck brace of Mrs Pillay was lying on the right hand side of the toilet.

[23]         The sixth witness was Simone Schalkwyk an Intermediate Life Support Medic who attended the scene in a combi-ambulance together with crew member Mr Warrick Peter Marlin, and the driver Siyabonga Buthelezi. They were called out at 8:26pm and arrived at the premises at 8:46pm. The gate was opened by a Blue Security guard, and they ascended the metal staircase to the door into the lounge. The Blue Security officer knocked and the door was opened by Mr Chanderlal. Mr Martin asked him where the patient was and Mr Chanderlal, who was very anxious, said that she was to the left, up the stairs. They went to the bathroom where they found Mrs Pillay lying between the bath and the toilet bowl. She seemed unconscious and a hand-held shower (which was in fact a bidet hose) was over her neck. They moved her so as to assess her more easily, and upon a medical examination declared her to be dead. When they entered the bathroom Mrs Pillay was lying supine with her head against the back wall of the bathroom and the bidet shower pipe lying across her neck. She conveyed the news of Mrs Pillay’s death to her family members, and Mr Marlin completed the paperwork. Ms Schalkwyk was alerted by a family member to the bruises on Mrs Pillay’s neck and upper arms and she called Mr Marlin and they re-examined Mrs Pillay and made notes of the injuries.

[24]         Ms Schalkwyk said that they were also asked to check the vital signs of Mr Chanderlal because he appeared distressed. She checked his blood pressure, heart rate and oxygen saturation, and found them all within normal limits. He was co- operative and assisted her in the examination, but was not talkative. Ms Schalkwyk declined to comment on the cause of death, stating that she was not a forensic pathologist.

 

[25]         The seventh witness was Doctor Saxony Olivier, a Forensic Pathologist employed by the Department of Health, who works in both the Phoenix Medical Legal Mortuary and the Inkosi Albert Luthuli Central Hospital. She took the photographs of Mrs Pillay which comprised Exhibit ‘C’ at the trial. She had received a call at 8:56pm from the call-centre and was asked to attend the scene of an unnatural death. She arrived at the home in Silverglen at 11:56pm. She was greeted by Detective Sergeant Govender and Captain Naidoo. She was given a history and background by the officers, and she compiled a report which was admitted as Exhibit ‘H’. Doctor Olivier testified to the basis upon which she estimated the time of death of Mrs Pillay, using a nomogram which uses various temperatures and other factors, to estimate on a chart, the time of death of a person. She estimated the time of death as being between 7:30am and 4:30pm on the 24th December. She discounted the possibility of suicide with the bidet hose as highly unlikely. She said that it would not be possible to sustain neck pressure for a sufficient time, because when someone started to lose consciousness, they would spontaneously inhale. Given the texture and shape of the bidet hose she would have expected to see the ribbed pattern of the hose imprinted on abrasion marks on the neck of Mrs Pillay. She did concede that Mrs Pillay’s neck could have been protected from marks by the soft collar.

[26]         Doctor Olivier regarded the discoid bruises on the neck as well demarcated, and commonly created by finger pressure. She also referred to curvilinear abrasions on the side of the neck below the ears which are commonly caused by fingernail marks.

[27]         Doctor Olivier also discounted the suggestion in cross-examination that the injuries sustained by Mrs Pillay could have been sustained in a fall. She said because of the concentration of the bruising around her neck it would have been difficult for her to injure herself that way in a fall, and she regarded that as highly unlikely and very difficult. When pressed she said there was a very remote possibility, but that the bruises on Mrs Pillay’s neck were not consistent with a fall. She was also of the view that the bruising was caused before the death of Mrs Pillay, because bruises are a vital reaction and requires circulation to bleed into sub-cutaneous tissue. She considered that one of the arm injuries could have been as a result of a fall. Doctor Olivier conceded that she did not note down every injury on Mrs Pillay as that was not her function, and the conditions under which she had been working in the bathroom were not ideal. She stated that those observations are the function of the person conducting the post-mortem examination report. In further cross-examination on the aspect of the curvilinear abrasions and bruises, she was of the view that because of the mechanics of falling, those injuries were unlikely to have been caused by falling. In combination with other injuries the discoid bruising was likely to have been caused by finger pressure. She did not regard it as probable that the deceased could have caused the bruises herself, in trying to remove the soft collar, but she conceded that they could possibly be defensive injuries.

[28]         Doctor Olivier also recorded that the abrasions she saw had been inflicted whilst Mrs Pillay was alive because post-mortem abrasions would have looked somewhat different.

[29]         The eighth witness was Doctor Zainub Khan, who conducted the Post Mortem Examination Report on Mrs Pillay. In her report she concluded that the cause of Mrs Pillay’s death was suspected compression of the neck. She testified that she had done so on the advice of her consultant, Doctor T Pillay. He advised her to keep the classification of the cause of death broad. In her evidence before court, however, she amended her Post Mortem Examination Report to record that she regarded the cause of death as being manual strangulation. She did so because she felt that she was now far more experienced than she was in June 2018 when she started, and in December 2018 when she conducted her report. She had not only gained considerable experience in the interim, read more widely, but discussed more of her cases with seniors. Her view was that the cause of death was manual strangulation because:

 

(a)       A scleral petechial haemorrhage presented in the right eye. This is a rupture of small blood vessels which occurs from the occlusion of a vein. Doctor Khan explained that when there is an occlusion with a continuing blood supply, pressure builds up until it cannot escape at which point small veins rupture. A petechial haemorrhage refers to fine blood vessels in the white of the eyes which is indicative of occlusion of the blood vessels in the neck.

(b)      Doctor Khan conducted a thoracic dissection to obtain a bloodless field to observe whether the marks on Mrs Pillay’s neck were haemorrhages or bruises. She discovered a fracture of the right superior horn of the thyroid cartilage. This was indicative of blunt force being applied to the neck and stretching and tearing of the neck muscles. This is a common finding in manual strangulation.

(c)      The discoid bruises on the neck of the deceased were indicative of fingers around the neck.

(d)      There was heavy congestion of the deceased’s lungs, which was attributable to asphyxia.

 

[30]         Doctor Khan stated that it was but a remote possibility that pulling the soft cervical collar roughly from the neck of the deceased would have caused the bruising which she observed. Doctor Khan also regarded it as a remote possibility that the deceased could have sustained her bruising injuries from attempts at resuscitation. If this was done when she was already dead, there would have been no vital reaction. Such a finding would also be inconsistent with the fracture of the superior horn.

 

[31]         Doctor Khan was also of the opinion that although the deceased may have had a previous medical examination of her third/fourth vertebrae, the fracture of the superior horn of the thyroid cartilage could not have occurred due to treatment she received, and is consistent with compression of the deceased’s neck. If the fracture of the superior horn had occurred a day or so before her death, she would have been in severe pain, although that alone may not have caused her demise. Doctor Khan also opined that it was possible that the deceased could have scratched herself taking off her soft collar, but she pointed out the fact that the deceased’s fingernails were short. She also opined that it was highly unlikely that the underlying bruising which she found in the neck dissection could have been due to massage. She also dismissed the proposition that the bruises around the deceased’s neck could have been due to her falling. She considered, however, that the bruise on the deceased’s left buttock could have been caused while falling. She also dismissed as unlikely the proposition that the strangulation was caused by an incomplete hanging. This was because of the other injuries which the deceased sustained and the fracture of the superior horn.

[32]         The ninth witness was Reggie Cebo Sabelo a Reaction officer employed by Blue security who was on duty on the 24th December 2018 and who received a call from the control room of an incident at 86 Riversdale Road. He arrived at the scene at approximately 8:25pm and obtained access to the premises by a master key for the driveway pedestrian gate. Mr Chanderlal was in the house at the time and he opened up for Mr Sabelo and told him that his wife had collapsed in the bathroom. He touched her, and found that she was not moving and that her toes were cold. He then returned to his car, called control and requested an ambulance and the South African Police Services, because he was uncertain as to what had occurred. When the paramedics arrived he took them upstairs to where the deceased was lying. When Mr Sabelo returned to his car, members of the South African Police Services arrived, and a gentleman who was related to Mrs Pillay.

[33]         When Mr Sabelo first saw Mrs Pillay, he noticed that the bidet cord was not around her neck but lying on her chest.

[34]         The tenth witness was Doctor Leaveil Aliphon, who is employed in the Psychiatric ward at R K Khan Hospital. The ward is designated AB1. He has been working there since 2015 having had four years’ specialist training from 2011 to 2014 in the registrars programme. On the 23rd November 2018 he examined Mr Chanderlal, who was referred to him by the casualty doctors after Mr Chanderlal had seen a private practitioner two days’ previously. Mr Chanderlal stated that he was going through a divorce and had been married for 15 years’. He felt that he was being alienated or ill-treated by the children of Mrs Pillay, his wife. He reported having had depressive symptoms for six months’. Doctor Aliphon conducted a Mental State Examination and Mr Chanderlal presented symptoms of depression – intermittently avoiding contact, speaking in a slow soft monotone and taking time to formulate responses. However, he had no suicidal thoughts or intent, and no homicidal thoughts or intent. He presented with no psychotic features.

[35]         Doctor Aliphon assessed Mr Chanderlal as having had a major depressive episode with severe social stresses, the features of which were the divorce, the alienation from his wife and her children, the fact that he was unemployed and that his wife was planning to relocate to Australia and sell the family home.

[36]         Doctor Aliphon gave Mr Chanderlal a prescription for citalopram a selective serotonin re-uptake inhibitor, which is the first-line treatment for depression. He also prescribed Phenergan, an hypnotic, for two weeks. This is the first-line treatment for insomnia.

[37]         Mr Chanderlal was booked for a two week follow-up consultation, but he never arrived. He collected the medication on the original script. This was established according to the pharmacist’s notes on the hospital records.

[38]         The eleventh witness was Sister Devina Ramraj Thanman who was employed as a Sister in the Casualty department of the Trauma Unit at R K Khan Hospital. Her function was to triage patients (an assessment) when they are brought in. She completed an adult triage form in respect of Mr Chanderlal. Mr Chanderlal was brought in on the 25th December 2018 at approximately 4:20pm by his brother.

[39]         Sister Thanman devoted some time in her evidence to the fact that Mr Chanderlal refused to answer questions posed to him by her and spoke only to his brother and through him. She claimed that she felt ‘intimidated’ by him because he looked annoyed at her questions. She was of the view that Mr Chanderlal was well orientated as to place, time, and person.

[40]         There were some debates in the evidence about whether Sister Thanman appreciated at the time she conducted the triage on Mr Chanderlal that he was in fact the husband of Mrs Pillay, who was well known to Sister Thanman. Sister Thanman maintained that she only realised the connection on the 26th December 2018.

[41]         A curious aspect of Sister Thanman’s evidence is that when Mr Chanderlal was about to be taken into the psychiatric ward – AB1 – she asked a male colleague, Mr Anirudrah, to enquire from Mr Chanderlal ‘Where is Jenny?’. Mr Chanderlal is alleged to have replied that ‘Jenny is sleeping on the bath’.

[42]         Sister Thanman also testified to various scratches and bruises which she said she observed on the arms of Mr Chanderlal.

[43]         The twelfth witness was Terrence Pillay who works at the Blue Security control-centre, and whose function it is to phone clients when their alarms are set off. They send out an armed response, if necessary. A transcript of the conversation with took place between Mr Terrance Pillay and Mr Chanderlal was admitted into evidence.

[44]         The thirteenth witness was Keith Supersad who is employed as a technician by Blue Security. He also does installations, attends to incidents such as break- ins etc. and conducted repairs. One of his functions is to extract data from the keypad of an alarm system in a home where an incident has occurred. He visited the home of Mr Chanderlal after the incident and downloaded the data from the keypad panel. He explained to the court how the alarm system in Mr Chanderlal’s home worked, and the salient features were:

(a)         The alarm may be set on two different systems, ‘Away’ and ‘Stay’. The ‘Away’ feature is used when no one is to remain in the house after setting the alarm. The alarm is armed at the panel and the person arming the alarm is given a limited time period within which to leave the front door.

(b)        In the ‘Stay’ mode, the alarm is armed but certain sectors are by- passed, which in the case of Mr Chanderlal’s house was zones 2, 3 and 6 – the lounge passive detector, the downstairs windows and the upstairs passive detector. This enables one to move around one’s home whilst the alarm is armed for break-ins, etc. Mr Supersad testified that the sliding door was part of the alarm, and traditionally is zone 1 which is the entry door to the premises.

(c)         If zone 1 was bypassed at any time, it is reflected on the data which was downloaded by Mr Supersad. The data, once downloaded is used by another employee at Blue Security to compile a list, numbered line by numbered line of each event which takes place in the alarm system. The raw data was introduced as exhibit ‘N’ and exhibit ‘O’ was the table of the line by line occurrences at the time.

 

[45]         Mr Supersad testified that the system was armed on the ‘Stay’ mode from 9:53am on the 24th December 2018 until 8:09pm on the same day.

[46]         Mr Supersad also initially testified that if the sliding door (which has a contact) is opened whilst the alarm is armed, it will set off the alarm. If the magnetic contact on the door did not work, then the door could have been opened without setting off the alarm. At the end of his evidence it was recorded that there was no challenge from the defence regarding the recorded times in the exhibits.

[47]         Mr Supersad was recalled by the State and he revisited the possibility of the sliding door (zone 1) having been opened whilst the alarm was armed on the 24th December 2018. He testified that zone 1 was the entry and exit zone of the alarm system and was clearly functional on the 24th December 2018, because zone 1 was working both before and after the event, and that could be seen from the exhibits recording the events which were downloaded from the keypad panel.

[48]         The fourteenth witness was Warrant Officer Shadrack Govender, a detective who has been stationed at the Bayview Police Station for 25 years’, and had worked as a detective for 15 of those years. He was on standby duty on the 24th December 2018 and called out to attend a murder scene in Silverglen.

[49]         When Warrant Officer Govender arrived there he was walked through the scene by Constable Ntungwa who pointed out an Indian female in ‘sleep clothes’ laying on the bathroom floor on her back. She had been declared dead by the paramedics prior to his arrival.

[50]         Warrant Officer Govender observed that she was covered with a duvet and had a shower cable on her chest. He observed a neck brace behind the toilet pan and observed bruising to her neck. He called for the State pathologist to attend, who was Doctor Olivier, and who established the time of death.

[51]           Warrant Officer Govender also inspected the entire house for signs of forced entry. He found none. He found Mr Chanderlal in his bedroom, together with his brother. Warrant Officer Govender then requested Mr Chanderlal’s brother to bring him to the Bayview Police Station. He described the scene as having a sad mood with people talking about murder and suicide. Two of the ladies were crying. No one became aggressive or confrontational at the scene, but family members were unhappy, as a result of which he had spoken to Mr Chanderlal, who refused to look at Warrant Officer Govender when he spoke to him. Although Warrant Officer Govender approached Mr Chanderlal in what he described as ‘a good and decent manner’, Mr Chanderlal was quiet and non- responsive.

[52]         Mr Chanderlal and his brother travelled together to the Bayview Police Station in his brother’s motor vehicle driven by Mr Chanderlal’s brother. At some stage Mr Chanderlal’s brother said to Warrant Officer Govender that Mr Chanderlal would not speak if he did not take his medication. Mr Chanderlal’s brother then indicated that he would take Mr Chanderlal to the R K Khan hospital as soon as Warrant Officer Govender was finished speaking to him. They spent approximately 45 minutes’ in Warrant Officer Govender’s office. Mr Chanderlal did not respond and only looked at the floor. Occasionally he would look up, but only at his brother. Warrant Officer Govender did not see Mr Chanderlal displaying any emotion whatsoever.

[53]         On the 11th January 2019 Warrant Officer Govender arrested Mr Chanderlal on a charge of murder, and explained his constitutional rights to him. Mr Chanderlal was asked to make a statement, but requested an ‘answer session’ with Warrant Officer Govender, but refused to answer most of his questions. Under cross-examination Warrant Officer Govender conceded that when he first received a call he was told of a dead body at Silver Glen and not a complaint of murder.

[54]         Warrant Officer Govender was aware of the presence of tenants staying at the basement section of the house and established that one was not able to access the main house internally from the basement.

[55]         When Mr Gounden, the attorney for Mr Chanderlal, started to put a statement by the tenant Mr Levison Banda to Warrant Officer Govender, I asked him whether Mr Banda would be called. Mr Gounden’s reply was that he would do so if the State did not do so. Mr Shah, the prosecutor, then pointed out that Mr Banda could not be found and was in fact a foreigner from Malawi who spoke Chechewa.

[56]         Mr Gounden then placed on record that that was the first time the defence had heard that Mr Banda could not be traced. The enquiries regarding the statement by Mr Banda were then not pursued. Warrant Officer Govender stated that he did not pursue trying to locate Mr Banda, because he had been replaced as the investigating officer and had not taken part in searching for witnesses.

[57]         The fifteenth witness was Doctor Reshmi Mohanlall who has been a medical officer at the RK Khan Hospital from January of 2015. She worked in the psychiatric ward, designated AB1, having worked in psychiatry from 2008, (save for a period of 18 months). She interviewed Mr Chanderlal at AB1 on the 25th December 2018, when Mr Chanderlal arrived at the RK Khan hospital accompanied by his brother. She stated that Mr Chanderlal was a known mental health care user, having presented himself to the psychiatry department previously. The complaint was that Mr Chanderlal had found his deceased wife, but had no recollection of the event. The assessment was done in the doctors’ consulting room in AB1. When Doctor Mohanlall arrived, she observed Mr Chanderlal in the waiting room with his brother and a female relative. Mr Chanderlal was seated in a wheelchair which could not fit in to the doctors’ consulting room, and at the request of Doctor Mohanlall he got out of the chair and walked into the doctors’ consulting room unassisted and sat down. Mr Chanderlal basically refused to answer any of Doctor Mohanlall’s questions, but volunteered that he did not follow-up with the treatment prescribed by Doctor Aliphon. Mr Chanderlal’s brother expressed the view that even though he had not taken the treatment, Mr Chanderlal had seemed in a better condition a week after visiting Dr Aliphon. The notes of Doctor Mohanlall record that Mr Chanderlal was clinically stable with abrasions on the ventral surface of his right upper arm.

[58]         Doctor Mohanlall conducted a Mental State Examination on Mr Chanderlal, and recorded that he maintained fair eye contact when she communicated with him. He was alert and his level of consciousness was normal. He had a flat affect with no range of expression on his face. She recorded that he was selectively mute, because he chose when to speak to Doctor Mohanlall.

[59]         Doctor Mohanlall recorded that Mr Chanderlal had undergone a stress event related by his brother, which was that Mr Chanderlal’s wife was in the process of deserting him, and emigrating to Australia and the UK. Mr Chanderlal had moved to into his parents’ home and his house was on the market. He had a poor appetite and did not sleep well.

[60]         Doctor Mohanlall recorded that she could not assess the judgment and insight of Mr Chanderlal – i.e. his understanding of his illness and the therapy around his treatment, because he did not communicate with her. When she asked him why he was in hospital he did not comment.

[61]         Doctor Mohanlall was not convinced that Doctor Aliphon’s previous assessment of depression was correct and she thought that Mr Chanderlal could be suffering instead from a mood disorder. She regarded him as malingering because there were inconsistencies in what she saw. She listed those inconsistencies as follows:

(a)        When she walked up the stairs into the waiting room, Mr Chanderlal was sitting in a wheelchair with his brother on a bench nearby. They were engaged in conversation, but when he got into the doctors’ consulting room, Mr Chanderlal refused to speak to her.

(b)        Mr Chanderlal was selective in the questions he chose to answer, which was not in keeping with a patient suffering from depression.

(c)        The impression given by his being in a wheelchair was that he was weak. However, he was able to get up out of the wheelchair and walked unassisted into the doctors’ consulting room and thereafter into the ward.

(d)        His contact was fair but his affect was flat. She would have expected a more depressed affect and downcast gaze. In her view he did not seem depressed.

(e)        In view of the diagnosis by Doctor Aliphon, and the fact that the medication which he had prescribed had not been taken, she regarded the fact that he had improved after a week as an alarm bell, and she felt a need to query the diagnosis of depression. Doctor Mohanlall also went through the ward notes which she had compiled whilst Mr Chanderlal was detained in AB1. He had told her that he saw an ocean on the floor and heard voices. He was, however, unable to provide any detail with regard to the voices he heard. Doctor Mohanlall regarded this as unusual because persons who hear voices are usually able to provide details of them. She found him to be apsychotic and euthymic – his mood was normal and stable.

 

[62]         Doctor Mohanlall was of the view that Mr Chanderlal was manipulative, particularly with regard to his visions of the ocean and the voices which he heard. She regarded his description of them as an attempt to make her think that he was psychotic. She discussed this aspect with her senior, Doctor Asmal, who agreed with her that it could be manipulative behaviour. They accordingly decided not to put Mr Chanderlal on any anti-psychotics or depressants.

[63]         A further aspect of Doctor Mohanalall’s investigation was that Mr Chanderlal told her that he was sad because his wife had passed away. He said that he had been in hospital at the time. She regarded this as bizarre, together with the fact that he also mentioned that he saw items growing bigger as well as hearing voices.

[64]         Doctor Mohanlall recorded that there was no psychiatric reason that Mr Chanderlal would have mumbled when family members asked him what had happened to his wife. That he had been assessed by paramedics and obeyed the instructions given to him, indicated to her that he was compos mentis. She opined that the fact that Mr Chanderlal would not look at Warrant Officer Govender in the bedroom, and that Mr Chanderlal followed his brother’s instructions, sounded very selective. She also commented upon the fact that when Mr Chanderlal had alighted with his brother from the motor vehicle at the police station, they had met at the front of the car, and his brother had held his hand while they walked to Warrant Officer Govender’s office. That behaviour, together with the fact that he looked down and refused to answer questions, indicated to her that Mr Chanderlal wanted to present the role of a sick person, and was fabricating. Her clinical assessment, as it appears in the hospital records, is one of a ‘grief reaction’ with no psychotic diagnosis and no medication required. She stated that anyone who was depressed would be able to appreciate the wrongfulness of their actions and act in accordance with that appreciation.

[65]         In cross-examination by Mr Gounden, Doctor Mohanlall stated that the assessment of a ‘grief reaction’ was that of her consultant Doctor Asmal. Doctor Asmal had never interviewed Mr Chanderlal, but had merely discussed him with Doctor Mohanlall. Doctor Mohanlall’s reaction to the question whether her assessment was a ‘grief reaction’, and in particular the manner in which she replied, made it clear that that was not her assessment, but that of Dr Asmal – it was not her personal view. She then stated that her personal view was that Mr Chanderlal was malingering. The recordal of ‘grief reaction’ had been suggested by Doctor Asmal who was of the view that Mr Chanderlal should be given the benefit of the doubt.

[66]         In reply to a question asked of Doctor Mohanlall, she stated that Mr Chanderlal’s behaviour was not consistent with a person who was in shock. Normally a person in shock or denial may initially not wish to discuss the matter, but would react that way to everyone, and it would not be a selective process. It would also only endure for a short period of day or so.

[67]         Mr Shah then stated that there was an agreement on the chain of evidence of the removal of Mrs Pillay’s body from her home and the delivery of it to the mortuary, where the post-mortem examination was conducted. Mr Gounden confirmed this and stated that there was no dispute with regard to the identity of Mrs Pillay. Mr Gounden agreed that that there was no dispute regarding the times of the telephone calls and the logged alarm times reflected on the annexures.

That was the State’s case.

 

[68]           Mr Gounden then applied for the dismissal of the State case in terms of s 174 of the Act, submitting that the evidence adduced by the State was of a circumstantial nature because there were only two persons in the house on the 24th December 2018. He criticised, and tried to cast doubt upon, the entire State case.

[69]           It was clear that the burglar alarm had been armed from 9:53am to 8:09pm on the 24th December 2018. The evidence of Mr Supersad established that the statement in Mr Chanderlal’s s 115 statement could not have been true, because if he had seen the sliding door open at a point when the alarm was armed, the alarm would have gone off. Doctor Khan had testified that in her view the cause of death was manual strangulation. The suggestion was made for the first time in argument that possibly either Mr Banda, or one of the other members of his family, could have been responsible for the death of Mrs Pillay. The evidence of Mr Supersad was that the zone 1 sliding door, which was the front door to the premises, was functioning both before and after the time of the murder. In those circumstances I was of the view that there was sufficient evidence to place Mr Chanderlal on his defence, and, in the exercise of my discretion, the s174 application was dismissed.

[70]         The only witness for the defence was Mr Chanderlal himself. His evidence may be summarised as follows;

 

(a)       There were problems in his marriage relationship with Mrs Pillay.

(b)       Those problems had existed for some time and Mrs Pillay had sought the assistance of Pastor Pillay in trying to resolve the marital problems.

(c)      Mr Chanderlal and Mrs Pillay had been together for 33 years’, and married for 15 of those years. They basically got married because they wanted to go and work in Dubai, and could not live together there if they were not married. Mr Chanderlal had taken care of the Mrs Pillay’s children when she was away working in South Arabia for approximately two years’.

(d)        Mr Chanderlal testified that the reason that Mrs Pillay wanted a divorce was because Mrs Pillay intended to relocate overseas to be with her son Gino and her daughter Carynne in Australia. Mr Chanderlal did not want to go with her because he would not leave his family and friends.

(e)        As a result of their marital problems, he had become depressed and had stayed in his room sleeping for long periods of time. His condition had deteriorated to the extent that his brother, presumably at the request of Mrs Pillay, had taken him to see Dr Aliphon at the end of November 2018.

(f)         On the 23rd December 2018 he had gone to bed and taken a sleeping tablet.

(g)        The next morning, he had been awoken by Mrs Pillay when she came into his room to get something, and she told him that her neck was painful, and she was going to go back to bed to take a nap.

(h)        Shortly before 8.00pm, Mr Chanderlal was asleep in his bed when he heard the phone ring. He eventually got out of bed, and went downstairs and answered the iPhone belonging to Mrs Pillay, which was ringing.

(i)       It was Gino, wanting to speak to his mother. He asked where his mother was. Mr Chanderlal told Gino that she was asleep. He thought that Gino had then said he must go and wake her up.

(j)       As Mr Chanderlal was about to go up the stairs and call Mrs Pillay, he noticed that the sliding door was open, and the sliding Trellidoor security gate behind it was closed, with the keys in the gate. He went towards the door and looked outside to see if he could see Mrs Pillay, but he could not do so.

(k)      Mr Chanderlal then walked back towards the bedroom and opened the door. She was not there, but their four dogs were. He closed the door and then noticed the bathroom door ajar. Upon opening it, he found Mrs Pillay lying on the floor. He went up to where she was lying between the bathtub and the toilet and felt her and he tried to wake her up. He realised she was cold and he panicked and called her name, but got no response. He then grabbed hold of the soft collar around Mrs Pillay’s neck and pulled it off. He tried to pull her backwards because it was too narrow between the bathtub and the toilet bowl for him to manage.

(l)          Mr Chanderlal then put his hand on her neck to see if she was breathing and realised that she was not. He also tried to see if she was breathing by placing his finger below her nose, but could not feel her breathing.

(m)      Whilst this was happening, he heard the phone ring again and he went back to answer it. It was Gino and he told him what had happened. Gino told him to press the panic button which he did. The pressing of the panic button set off the alarm which in turn caused the dogs to start howling. Mr Chanderlal then entered the code into the alarm keypad to switch it off. Thereafter, he received two phone calls from Blue Security, and the person he spoke to undertook to send someone to the scene.

(n)        Mr Chanderlal then went out onto the balcony where he later saw Mr Levison Banda opening the pedestrian gate of the driveway gate. The security guard walked up the stairs to the house, and then asked Mr Chanderlal what had happened and Mr Chanderlal took him to the bathroom.

(o)        Mr Chanderlal then took the dogs, which were creating a nuisance, into his wife’s bedroom and shut the door. The security guard then left the house and returned later with the paramedics and Mrs Pillay’s brother, Duggie Perumal. Mr Chanderlal showed them into the bathroom, and whilst Mr Chanderlal was standing observing at the bathroom door, Duggie Perumal told him to go into the bedroom. He went into the bedroom and sat on his bed. He denied that Duggie Perumal had found him lying in the bed with the blanket pulled over him.

(p)        After a while Mr Chanderlal could hear the dogs making a noise in his wife’s bedroom and he decided to let them out of the bedroom. As he was about to do so, Duggie Perumal entered the bedroom and asked him what had happened, and Mr Chanderlal said that he did not know.

(q)        Hearing the dogs being restless again, Mr Chanderlal opened the door to his wife’s bedroom and let them out. There were a lot of people in the lounge and the dogs went downstairs to greet them. Eventually he managed to put them back into his wife’s bedroom again and went to wash his hands. He then returned back upstairs to his bedroom.

(r)          As the dogs continued barking and making a noise, he opened his wife’s bedroom door again, to let them go outside. Duggie Perumal came up to him and swore at him, telling him to put the dogs away. He locked them in Mrs Pillay’s bedroom again, and again washed his hands and went into his bedroom. At a later stage his brother and cousin came into his room together with Warrant Officer Shadrack Govender. Mr Chanderlal was sitting on the bed, and Warrant Officer Govender asked him what had happened. Mr Chanderlal did not reply, and eventually his brother told him to change because he was sitting in a t-shirt and shorts. Mr Chanderlal then changed his clothes and left with his brother to go to the police station.

 

[71]         After Mr Chanderlal had finished his evidence, the defence closed its case. Mr Shah and Mr Gounden then argued their respective cases. In Mr Gounden’s address he raised as an issue the fact that the burglar alarm in the house had been attended to on the 27th December 2018 by Gayen Perumal, a technician employed by Blue Security. Mr Gounden’s point was that it was possible that a repair was done to the alarm system, and zone 1 (the sliding door) in particular. He suggested that the State had been ‘sinister’ in not calling the technicians to speak to that call-out. The call-out had in fact been attended to by Brandon Joubert, a technician hired Blue Security. There had been another call-out on the 21st January 2019. Mr Gounden suggested that I should draw an adverse inference against the State for failing to clarify this part of the evidence. The inference he wished me to draw was that the State was concealing evidence adverse to its case.

[72]         Mr Shah argued strenuously that there was no onus on the state to cover every single suggestion of the defence, when it was not supported by any evidence, and was not raised with pertinently with the state witnesses, and not dealt with during the defence case.

[73]         As the matter of the proper function of the sliding door in zone 1 of the house seemed to me to be a matter of crucial importance in the evidence of Mr Chanderlal, (because he suggested it was open in circumstances where it should have set off the alarm), I decided that it would be in the interests of justice that the issue be resolved, and in terms of s 186 of the Act I decided to call Mr Brandon Joubert.

[74]         Brandon Joubert testified and his evidence may summarised as follows:

(a)        He is a member of his own close corporation which subcontracts to Blue Security. On the 27th December 2018 he attended the premises of Mrs Pillay at 86 Riversdale Road Silverglen. He had been on standby on the day, and was called out to change the user code because the user had passed away.

(b)        Mr Joubert arrived at the premises and waited for the client at about 8:00pm. A few family members then arrived. One of the family members and Mr Joubert then went inside the premises and Mr Joubert changed the code on the keypad. He then set off the panic button and allowed the client to disarm the alarm. He then tested a duress signal to ensure that it was not affected by altering the user code.

(c)         Mr Joubert then made sure that the system was ready to arm so that the client could leave the property. He ensured that all doors and windows were closed, so that the client would be able to use it. He was not asked to do anything else, and he then left the premises.

(d)        His view that it was not possible that zone 1 (the sliding door) was not working because he had to close up everything to ensure that the system was ready to arm. Zone 1 showed that it was opened until it was closed.

(e)         Mr Shah introduced into evidence a copy of a document entitled ‘Work order’ which showed the job which had been performed. Mr Joubert clarified that although the work order was dated the 28th December 2018, that was because the control centre does not have access to the electronic tablet used to send the order, after normal business hours. Instead they phoned him and the order was opened and closed on the electronic tablet the next day. That was the normal course which was followed when work was performed after hours.

 

[75]         Mr Joubert was cross-examined at length by Mr Gounden to little effect. What he did establish was:

(a)              That the ‘Work order’ was not an entirely reliable document because it was completed the next day and was therefore unreliable. This was established in any event by Mr Joubert in his evidence-in-chief.

(b)             That although the alarm system was old, that did not mean that it would necessarily malfunction. Where an alarm system malfunctioned because, for instance, a door contact had become damaged for any reason, Mr Joubert stated that in 98 percent of cases the alarm would not arm and the user would immediately be alerted to the problem. Even if the electronic cabling was old that would not cause a problem unless the cabling was corroded.

(c)              Mr Joubert stated that he did not examine the contact on the door on zone 1 and he did not test the continuity of the cable. He was adamant that there could not have been a problem with zone 1 which occurred intermittently, even though he never tested it.

(d)             Mr Joubert pointed out that it was not possible to arm the alarm system if the sliding door was opened. He would not have tried to do so because the keypad would have flashed and the alarm would not have armed. To have tried to do so would have been wasting time because it would not work.

(e)              Mr Joubert agreed that it was possible to open the front door when the alarm was armed, but that would only be in the case where a user had bypassed zone 1. In reply to the question whether a door contact could show a closed circuit on the keypad whilst the door was open and the door was slammed closed, he stated that it would not reset as suggested because the contact is on the frame side of the door.

[76]         After the evidence of Mr Joubert was completed, Mr Gounden suggested that I should invoke my powers in terms of s 186 of the Act in relation to Mr Banda and any other of the Banda family who were reflected in the list of witnesses. Mr Shah opposed the suggestion and stated that he was not predisposed to call the investigating officer as suggested by me. He submitted that as the defence had not elected to deal with this issue in its evidence, it was bound by that election.

 

[77]         As the investigating officer, Warrant Officer Visvanathan Nair, was present in court, I called him as a witness in order to clear up the possibility of locating either of the Banda witnesses. I did so because it occurred to me that it may be in the interest of justice for Mr Chanderlal to know why they were not called.

[78]         Warrant Officer Nair testified and stated that he did not know Mr Levison Banda personally, but had tried to establish his whereabouts by going to 86 Riversdale Road. When he did so there were no longer any persons residing on the premises. He also visited the neighbours because he had been told that Mr Levison Banda had moved next door. He was unable to elicit a positive response from anyone. He also visited other residences in the vicinity without any success. Mr Shah and Mr Gounden then both finalised their addresses to me on the question of Mr Chanderlal’s guilt or innocence.

[79]         I then adjourned the trial for judgment. In the afternoon after doing so, my Registrar was advised by Mr Shah that one of the Banda witnesses, Mr Chancy Banda, had been traced. The following morning I was advised that neither party wished to re-open their case to call him. This was confirmed by both Mr Shah and Mr Gounden. With regard to Mr Levison Banda, Mr Shah placed on record that the information which he had received was that Mr Levison Banda had returned to Malawi earlier this year, because he could not obtain employment due to the constraints of the Covid-19 epidemic. Mr Shah placed on record that what he had been told was hearsay, and he could not comment on its value. Mr Gounden did not wish to add anything.

[80]         Dealing with the state witnesses, I am of the view that with exception of Sister Thanman, they all gave their evidence in an honest and forthright manner. Whatever discrepancies arose out of their evidence were no more than those which a court would normally expect to occur after witnesses had testified about a very harrowing event two years later.

[81]         In the case of Sister Thanman her evidence is marred by the fact that she claimed not to have known about the identity of Mr Chanderlal’s wife when she triaged him. The problem with her evidence was the inherently improbable question she asked Mr Anirudah to ask Mr Chanderlal, when the triage was completed, and Mr Chanderlal was on his way to the doctors’ consulting room in AB1. That question was an improbable one for Sister Thanman to have wanted answered if she had no idea that Mr Chanderlal’s deceased wife was in fact the person Sister Thanman knew and admired as Sister Jenny Pillay. The fact that she may have known the true identity of Mr Chanderlal’s wife (and not only learnt it the next day on the 26th December 2018) casts a shadow of possible bias over the rest of her evidence with regard to her observations of, and the reactions of, Mr Chanderlal.

[82]         The suggestion that Gino Pillay was a somewhat emotional witness is a correct observation. He was clearly extremely attached to his mother and greatly distressed by her death. I am satisfied that he did his best to relate exactly what had happened. He had clearly been suspicious and extremely anxious about the fact that he could not speak to his mother. The cause of his anxiety was fully justified in the circumstances.

[83]         Some criticism has been levied at Gino Pillay because he related a telephone call which he made to the house, and which he believed was answered at approximately at 7:15pm (South African time). The documentary evidence would appear to indicate that that call in fact went to voicemail. What the witness may have believed was heavy breathing on the other side of the phone could have been no more that the introduction of the instruction to leave a message. I do not believe that this factor makes any difference to the veracity of Gino Pillay’s evidence, which I have no hesitation in accepting, because his evidence is strongly supported by telephone logs of both his own cellphone and that of Mrs Pillay.

[84]         A hallmark of the evidence of the remaining State witnesses, both family and expert witnesses, was that they openly made concessions where it seemed appropriate. I do not believe that there was any intention to colour their evidence in order to prejudice Mr Chanderlal or strengthen the case against him. In particular, the evidence of Doctor Mohanlall was convincing in so far as she set out how she alleges Mr Chanderlal was malingering and sought to deceive her.

[85]         The evidence of Mr Chanderlal, however, was is a different category to that of the State witnesses. Mr Shah had cross-examined Mr Chanderlal for three days’. In truth Mr Chanderlal was an extremely poor witness. Examples of where he clearly sought to tailor his evidence to fit in with his s 115 statement were:

(a)              The fact that he saw the sliding open when he was speaking to Gino Pillay on Mrs Pillay’s cellphone, and was setting off to call her. The evidence of the technicians clearly establishes that it was simply not possible for the sliding door to have been open in circumstances where the alarm was armed. In this regard I do not believe his evidence and defer to the expert witnesses.

(b)             In Mr Chanderlal’s statement in terms of s 115, he stated that after seeing that the sliding door was open, he looked outside to see if Mrs Pillay was there, and he did not see her. He then stated that ‘I went back inside the house to search for her…’ In his evidence, when it was suggested to him that he had gone outside to look for Mrs Pillay he denied that, and said that when he had said that he had gone back inside the house to search for her, he had meant to convey that he had gone up to the sliding door, looked through it, and then gone back into the rest of the house and up the stairs to her bedroom. In argument, Mr Gounden suggested that this was an example of the colloquial use of language by Indian persons and that what Mr Chanderlal intended to convey was that he went ‘deeper into the house’. I do not accept this explanation and regarded this as an attempt by Mr Chanderlal to tailor his evidence. In my view he tried to do so because he wanted to create the impression that the door was open. In those circumstances he could create the defence that someone else had come in to the house and murdered Mrs Pillay. He did not realise, or had forgotten, that the alarm contact was on the door and not the security gate, which was shut. It was only during the evidence of the experts that he became aware of the problem that the open sliding door would set off the alarm. In truth it did not matter on Mr Chanderlal’s version whether he exited the sliding door or not. The fact, however, that he sought to tailor his evidence is telling.

[86]                I have no doubt that Mr Chanderlal was being truthful when he stated that he had become increasingly depressed by the fact Mrs Pillay intended to divorce him and leave the country. He also complained that he had been alienated from her minor children and that they refused to take his calls. This must have been particularly painful for him, because he had taken a large role in raising them, and was clearly very fond of them.

[87]         Further observations of his evidence were:

(a)            Mr Chanderlal spoke so softy when he gave his evidence that he had to be asked on many occasions to speak up. He often mumbled and was unable to be heard. The necessity for Covid-19 masks to be worn, exacerbated this problem.

(b)             Although Mr Chanderlal answered a great number of questions posed to him, his answer to many questions about what had happened on the day in question, and during the court proceedings, were ‘I can’t recall’(more than 50 times) and ‘I’m not sure’ (more than 60 times).

(c)              That Mr Chanderlal’s was not being truthful was evidenced by his complete inability to explain the presence of the bidet pipe lying across the chest of Mrs Pillay in the bathroom. He had intended to move her, and he insisted that he had not seen the bidet pipe across her chest. It would simply not have been possible for him to have examined her in the way in which he testified he did, without being obstructed by the bidet pipe, and having to move it. It was clearly on her chest when the Blue Security guard Mr Sabelo, and the paramedics and Mr Duggie Perumal arrived on the scene. They all testified independently that they had seen it lying on her chest. In my view this was clearly done by Mr Chanderlal to create a situation where it would appear that Mrs Pillay may have strangled herself using the bidet pipe. That that, in any event, could not have been the case was dealt with by Doctor Olivier and Doctor Khan. The doctors also put paid to the suggestions made in cross-examination that the extent of bruising on Mrs Pillay’s neck could have been caused by her falling.

(d)             The question arises as to why Mr Chanderlal had indulged in the ‘malingering’ exercise described by Doctor Mohanlall. The only possible explanation is that he was attempting to persuade the medical authorities at ward AB1 that he was in some way mentally unbalanced, and hence not responsible for his actions in causing the death of Mrs Pillay, or that he could not answer questions regarding her death because his mind had become disturbed. These suggestions are discounted by the medical evidence. Indeed, in my view the behaviour of Mr Chanderlal may somewhat have masked his true condition, and induced Doctor Mohanlall to query the diagnosis of depression by Doctor Aliphon.

(e)              It is also inherently improbable that Mr Chanderlal would have slept for some 24 hours’ (save for waking very briefly when Mrs Pillay came into the room), without having to use any toilet facilities, as he testified he did.

(f)               His explanation for trying to explain that when he told Dr Mohanlall that he was hearing voices was that he was referring to the noisy occupants of ward ABI. This was a pathetic effort to try to explain his conduct in being untruthful to Dr Mohanlall in order to mislead her. 

 

[88]         In all the circumstances then, the court is faced with the evidence of the State witnesses and the evidence of Mr Chanderlal. For the reasons which I have set out above, it is my view that the evidence of Mr Chanderlal cannot be accepted unless it is corroborated by the State witnesses or the evidential material regarding the phone calls and the burglar alarm system. I regard his evidence as so improbable that his version could not be said to be reasonably possibly true.

[89]         On a conspectus of all the evidence and the probabilities I find:

(a)              Mrs Pillay died on the 24th  December 2018.

(b)             Mrs Pillay was murdered and the cause of her death was manual strangulation.

(c)              Mrs Pillay was murdered in her home. On the evidence of the State and the defence, the only other person present in the house was Mr Chanderlal. He has denied having murdered Mrs Pillay, but his evidence in that regard is unacceptable.

(d)             Although the evidence of the lay persons and the medical experts indicate that Mr Chanderlal was suffering from depression, the medical evidence makes it clear that that would not have prevented him from remembering everything that happened, and being able to relate it to the court. The fact that he attempted to mislead the medical experts by manufacturing symptoms which were not real, indicates that he tried to distance himself from the death of Mrs Pillay. The suggestions or theories put up by the defence as to the cause of Mrs Pillay’s death and the persons possibly responsible, cannot be accepted. I say this because:

(i)              His original case was only that he did not murder Mrs Pillay.

(ii)           As the trial progressed, more defences came to light, including the fact that Mrs Pillay had sustained injuries by falling, that she had committed suicide by self-strangulation, and that someone else had entered the house and murdered her. Indeed, in advancing argument on these matters Mr Gounden conceded that this required speculation on the part of the court. No evidence was led either by way of lay persons or experts in the medical field to lay a foundation for, or to deal with any of the defences raised by Mr Gounden during the course of the trial.

(iii)           As pointed out by Mr Shah for the State, it is not the function of the State to deal with each and every imagined or possible defence raised by an accused. It is not the State’s case that any of the scenarios suggested by Mr Gounden are possibly responsible for the death of Mrs Pillay.

(iv)           In those circumstances, and if the defence wished to advance those defences, it had to put up some evidence to deal with them, or to cast sufficient doubt on the State’s case that it could be said that the State had not proved its case beyond a reasonable doubt. The defence did not do that. This is not to suggest in anyway that Mr Chanderlal bore any onus whatsoever. But when the state case establishes what it did in this matter, a failure to deal with that evidence has the consequence that his defence cannot succeed.

(e)         There is a possible window of difficulty for the State, in that the burglar alarm was disarmed between 4.24am and 9.53am, with 7.30am being when the estimated range of the time of death of Mrs Pillay started. On Mr Chanderlal’s version, only Mrs Pillay could have disarmed the alarm at 4.24am and rearmed it at 9.53am. No one else could have harmed Mrs Pillay between those times, and then exited the house whilst leaving the alarm armed on the ‘Stay’ mode, which the documentary evidence reveals was the status of the alarm at the time.

 

[90]         Although the court, and indeed the family of Mrs Pillay, may never know the exact details of the dreadful events which culminated in her death, that is because Mr Chanderlal has chosen not to disclose them.

[91]         Whatever incident arose in the home on the 24th December 2018 which led to the death of Mrs Pillay, the State has not established that Mr Pillay acted with premeditation or any level of planning. It is not established that the crime which he has committed falls within the category of those set out in Part 1 of Schedule II to the Criminal Law Amendment Act, 1997.

[92]         In all the circumstances Mr Chanderlal, you are convicted of murder, in that on or about the 24th December 2018 in the premises at 86 Riversdale Road, Silverglen in the district of Chatsworth, you unlawfully and intentionally killed Vathaniagee ‘Jennifer’ Pillay.

 

 

 

Lopes J

Assessor:                                 Mr S Miloszewski

 

Dates of hearing:                     19th October - 6th November 2020.

 Date of Judgment:                  09 November 2020.

 

For the State:                           Mr    Shah   (instructed   by   Director   Public Prosecution).

Counsel for Mr Chanderlal:    Mr Gounden (instructed by PC Gounden &

Associates).

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