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IN THE HIGH COURT OF SOUTH AFRICA

[NORTHERN CAPE DIVISION, KIMBERLEY]

Reportable:

Case No: K/S 46/2012

DATE: 27 MARCH 2014

In the matter between:

THE STATE

v

DD

JUDGMENT

Date Heard: 11/03/2013 – 09/12/2013 25/03/2014

Date Delivered: 27/03/2014

KGOMO JP

1. This trial has been conducted under s 63 of the Child Justice Act, No 75 of 2008, read with s 154(3) of the Criminal Procedure Act, No 51 of 1977, because the accused is a minor of 17 years. When the offences were committed by a perpetrator on Good Friday 06 April 2012 he was 15 years and eight (8) months old: date of birth 15 August 1996. A probation officer conducted an assessment in terms of s 34 of the Child Justice Act for the purpose set out in the relevant provisions of s 35 of the same Act. This was carried out before the inception of the bail proceedings which led to him being admitted to bail on 03 September 2012.

2. At the bail proceedings, which were formally admitted in evidence, and throughout the trial in this Court the minor was supported by his guardian, Mr Bennie Heckroodt, as stipulated in s 65(1) of the Child Justice Act. Also supporting the minor and/or in attendance were his maternal and paternal grandparents and other close relatives. The media applied and were permitted, unopposed, to report on the proceedings subject to stringent conditions, mainly relating to the non-disclosure of the identity of the minor. Every care was taken to afford the minor a fair hearing. See generally Centre for Child Law v Minister of Justice and Constitutional Development and Others (National Institute for Crime Prevention and the RE-Integration of Offenders, as amicus curiae 2009 (2) SACR 477 (CC).

3. The State has arraigned the minor on five counts. It is alleged that on the said fateful Good Friday on Naauwhoek Farm, Griekwastad (Griqua Town), he raped, Ms M, his younger sister of 14 years (Count 1) and also murdered her (Count 4); that he murdered Mr D, his father (Count 2); and Mrs C, his mother (Count 3); and that he defeated the ends of justice by making a false declaration to the police that this was a farm-attack, whereas he was the culprit, to which the police acted upon with prejudice to the State and subverted the administration of justice.

4. Describing the crimes as I have done sounds insensitive. However relating the minor to the deceased victims is unavoidable, lest the portraying of the events become convoluted or even ridiculous. This will become evident in due course when the plan of the house is described, who occupied which room (including the minor), and where the deceased were when they were attacked. In the circumstances keeping the lid on the identity of the minor has been a nightmare. In fact counsel on both sides of the divide mused whether the proverbial horse has not bolted before the stable shutters were closed. My verdict is: Not at all, and that is how it has to stay for the present.

5. The minor was represented by two experienced counsel, Advv W Coetzee and S Erasmus (Ms) until their mandate was controversially terminated just a day before judgment was due to be delivered on 12 December 2013. No elaboration is necessary at this stage. The minor pleaded not guilty to all the charges and exercised his constitutional right to remain silent, by not disclosing his defence. However, through the cross-examination of the state witnesses it emerged that the minor admitted that he was at home at the crucial period, but not in the house where the three deceased were shot and/or died. He claimed that he had been in the barn which is about 34 metres from the residence when he heard the fatal shots fired, perhaps two volleys (series) of them.

6. The first sign that something awful had happened was testified to by Ms Martha Watermond and Ms Abbigail Pieterse. They were at an outside toilet at the employees’ living quarters when they saw the minor accused (also DD) opening the secondary motor gate used by the workers when entering the farm from the main road. The main road leads from Griekwastad (in the North) to Niekerkshoop (in the South). Ms Watermond was employed by the minor’s parents. Their living quarters are 600 metres from the farmhouse.

7. Whereas it was suggested in cross-examination and testified to by the minor that he took that route to warn the workers, the version that I accept from these two ladies (more pertinently Ms Watermond’s) is that the minor drove up to the gate, opened it, and on seeing them when he returned to his vehicle (an Isuzu van), only then did he report that they must make way because his family has been killed. They, and a few others, panicked and drove away in Jan Ludick’s white 1400 Nissan van. Ludick is Ms Pieterse’s husband.

8. I want to say this at this early stage about Ludick’s van. The minor could not have missed seeing it. The undisputed evidence is that it stood next to the gate, outside the farm, facing the said main road. As it took off its rear wheels spun leaving track-marks on the gravel surface. The police photographer Sgt Mongale took a photo of the track-marks (Exh F photo 6) on Saturday 07 April 2012. What is surprising is that the defence suggested that the getaway attacker’s vehicle could have left those tyre marks. During the inspection in loco the defence was silent on the presence of Jan Ludick’s van on that spot. The only inference is that the minor did not instruct his counsel about it for spurious motives.

9. I also want to get out of the way a further aspect on which much time was spent by the defence in cross-examining every police witness and some other witnesses. Jan Ludick’s van suffered a deflated tyre pressure when the farm workers and their friends heeded the minor’s warning to flee to safety. The vehicle was abandoned not far from the farm. A bloodstain was left on the steering wheel and the body-work. The defence suggested that it could have been the attacker’s getaway vehicle and blood. DNA genetic material swabs taken were ineffectual for forensic testing. It turned out that the blood emanated from Jan Ludick who got cut on his hand when he fixed the exhaust pipe of his vehicle earlier in the day. There should have been nothing suspicious to the minor about all this.

10. The sleepy hamlet of Griekwastad (which does have a church) was rocked to its knees when a fresh-faced 15 year old boy burst into the police station shortly before 19h00 on that Friday, 06 April 2012, and reported that his parents and sister have been murdered on Naauwhoek Farm, about 10 km to the South, and that he is the sole survivor. A lot of time was spent by the defence in a valiant attempt to show that the minor could not have been so categorical about the deaths. From the overwhelming evidence of the people he spoke to, mainly relatives who were near and dear to him, and the police I find that he was indeed categorical.

11. From the evidence of W/O Wildt who was in charge of the Charge Office (now called the Community Service Centre (CSC), Consts G B Kutoane and J M Langa the minor was very emotional, his face and both hands were bloodied and bore a fresh scratch mark on his neck. His first report was that his “pa en ma en sussie so pas doodgeskiet is op die plaas Naauwhoek.”

12. The police testified that W/O Rooi, now unfortunately deceased, knew the minor and his parents. He took the minor to an inner office to calm him down. The minor washed his face and hands in a hand-basin in the police courtyard. He discarded the bloodied T-shirt next to the basin. He was therefore, for some time, unclad on his upper body. Photographs 1-9 of Exh B. The minor, on his own volition, left the CSC and was followed by W/O Rooi. On their return W/O Rooi carried a .22 rifle and a .357 revolver. These firearms were retrieved from the Isuzu van that the minor drove, and was parked in front of the police station. All these are matters which are common cause or not disputed or are accepted by me as evincing the truth. The scenes described here were also pointed out during the inspection in loco which was conducted there on 18 March 2013.

13. It is common cause that the aforesaid firearms were the property of the minor’s murdered parents and that they are the murder weapons in respect of all the deceased. How the minor came in possession of these weapons is a matter deferred for later discussion.

14. The police officers aforementioned and their colleagues at the police station understood the minor to convey to them unambiguously that these were farm murders, not merely a farm attack. Nothing was reported concerning any survivors or possible survivors, bar the minor himself. The police machinery clicked into gear. The big guns were mobilised forthwith. First to be contacted was W/O Mofokeng, the Detective Branch Commander, who had just knocked off duty and was on his way home. As it behoves a dedicated police officer he made a U-turn. Next was Capt Jafta, the Station Commander, who answered the call 150 km away in Kimberley. Then followed Major General De Waal (Ms) who was the officer on duty at a Provincial level. The general is not to be confused with Col De Waal, the investigating officer, who features prominently throughout this case. The latter was dispatched and took charge of the investigation from the evening of the murders. A helicopter was commissioned which reconnoitred and scoured the skies for suspects. Police stations in the surrounding areas were put on alert.

This detail is of particular relevance when the charge of defeating the ends of justice falls for determination.

15. Ms Henriette Truter was the Manager of the Proviand Restaurant across the street from the police station. That Good Friday evening was a quiet business day, as far as patrons are concerned. She therefore sat on the stoep sipping coffee. She saw the already described Isuzu van approach at high speed and stopped abruptly in front of the police station. The minor jumped out and ran up the stairs towards the charge office and screamed “[julle] moet kom. Geskiet, geskiet, almal is dood”. Shortly thereafter he emerged running with a police officer in tow. The minor removed what seemed to Ms Truter to be a firearm from the back seat of the van.

16. Ms Truter realised that the boy needed some calming down. She prepared a glass of glucose drink (sugar and water). The police allowed her to approach the minor. She found him in the courtyard washing one of his feet in the aforedescribed washing-basin. She gave him the glucose drink. He exclaimed: “Tannie, tannie, dis my sussie se bloed, sy is in my arms dood”. He later repeated: “Nee tannie hulle is almal dood”. And yet afterwards: “Wat gaan van my word, waarna toe gaan ek nou”. The point here is that there was no doubt in the minor’s mind that his immediate family has been wiped out. The minor later washed more blood off himself at the restaurant. There was still blood behind one of his ears which Ms Truter wiped off. According to this witness the minor was throughout very busy texting messages. He enquired from her whether he should text only his best friends or all friends concerning the occurrences. She advised against it all.

17. Under the more relaxed and conducive atmosphere of the Proviand Restaurant, after the incident had somewhat sunk in, the minor related the following accounts to those who were near and dear to him, who sympathised with and supported him the same evening.

18. To Pastor Pieter Otto: He repeatedly stated that all the deceased were dead. Elaborating, he told the pastor that the family watched a popular soapie, Vetkoek Paleis. At the end thereof he went to the barn to fix something that the pastor could not recall. It became common cause, having regard to confirmation by other witnesses and the minor’s admission, that Verkoek Paleis commenced at 18h00 and concluded at 18h30. While at the barn he heard shots been fired. He hid for a considerable but unspecified period there. When he thought it was safe he ventured out. His parents were dead. His sister was still alive. She tried to phone from the landline. She grabbed him. “Ek onthou die woorde: ‘Oom, ek het haar weggestoot, die bloed!”’

The minor told him that he picked up the firearms on his way towards the workers’ gate. “Ek het die wapens hanteer en ek weet ek moes nie.”

Asked by Paster Otto who could have done such heinous deed the minor speculated that his father quarrelled with a Coloured man who owed him R20 000 for the sale of a bakkie. He gave a name which escaped the pastor. The minor retracted the insinuation afterwards. However he repeated this suggestion to Col De Waal when he obtained his witness statement. The name supplied was “Wippie Deerling” who stays in Griekwastad. Col De Waal obtained Mr Deerling’s statement. The latter was not called as a witness but was made available to the defence at the close of the state case. Pastor Otto also testified that in November 2011 the minor informed him that he only wanted to farm and nothing else but his father insisted that he equipped himself academically first.

19. To Mr Bob de Villiers: The minor said towards the end of the Vetkoek Paleis programme he went to the barn to put away a knife. He heard six shots being fired from the direction of the house. He was scared and remained concealed for a while there. He later investigated and found his parents and sister sprawled on the floor inside the house:

“Hy het waargeneem dat sy suster nog gelewe het. Hy het na haar toe gegaan om haar te ondersteun en in die proses het daar nou van sy suster se bloed aan sy hemp gekom en in die proses is sy hemp ook van sy lyf af geskeur.”

The minor also told him that he picked up the hunting rifle at the workers’ (the secondary) gate. He was concerned that his fingerprints could be uplifted from the trigger.

20. To Ms Henriëtte de Villiers: She is the wife of Bob De Villiers and corroborates her husband on material aspects. What is noteworthy, though, is that she adds that: “Hy het ook gesê dat dit gelyk het asof sy pa opgespring het want hy het nie meer op die bank by die televisie gesit nie, hy het op die vloer gelê.”

What is further significant is that Ms De Villiers testified that the minor gave a reason why the knife had to be cleaned:

“Hy het gesê hy wou die mes skoonmaak om hom te gaan bêre omdat die skool begin en hy nie die volgende dag dit kon doen nie, daarom wou hy dit toe doen.”

21. To Samuel (Junior) Ludwick: Mr Ludwick testified that the minor’s account that follows was elicited in his presence by the minor’s relative, Mr A (Bulletjies) S, who did not testify but attended the hearing:

“Okay, hy het begin en gesê hulle het as gesin buite op die gras gewees en gekyk hoe die koedoes in die vlei loop. En toe begin `n program op die TV, Vetkoek Paleis, waarna hulle ingegaan het om te gaan kyk. En tydens dit het hy toe na die buitegebou gegaan om iets daar te gaan doen. En toe het hy die skietlampe gesien wat stukkend is en hulle begin regmaak en in die tyd het hy toe skote gehoor. Hy sê en toe het [sy suster - Ms M] gegil en toe weer skote en hy `n ruk lank weggekruip en toe na die huis gegaan---.

Het hy op enige stadium gemeld terwyl u by was hoe lank hy in die stoor sou gewees het of nie? --- Ja, hy het gesê plus minus `n kwartuur, skat hy.”

He said his sister “was in sy arms en dis waar sy gesterf het.” His sister “het dan sy hemp houvas en wat ek aflei tydens haar laaste asem het sy seker saamgetrek en toe die hemp geskeur.”

Mr Coetzee, for the minor, put it to Mr Ludwick that the minor will deny that he said or heard his sister scream.

The reports set out in paras 18–21 (above) took place during the evening of the fatal shootings (06/04/2012).

22. To Ms Martha Massyn on 13 April 2012: Ms Massyn is the minor’s maternal grandmother. On this day he told her that whilst he was at the barn he heard a volley of gunfire and an apparent lull and then another volley. After a while he entered the house only to find his parents dead but his sister was still alive “en hy het haar net teen hom gedruk en sy het gesê: Boetie, ek is lief vir jou, en gaan nou doodgaan.”

The minor also informed her that a former farmworker David (later identified as Mr Kgoronyane) had a squabble with his father, threatened some time back, that when farm-murders begin in Griekwastad his (the minor’s) family will be the first targets. Let me make short schrift to this insinuation. Mr Kgoronyane and his employer Mr David Hesselman testified. When the news reached them that the minor’s family were murdered they were several kilometres North of Griekwastad, very busy with farm work. Mr Kgoronyane even left his half-cooked food when he and the Hesselman family hurriedly moved to the safety of town. The false accusation against Mr Kgoroyane was totally unwarranted.

23. To Ms Marianne Smith, the minor’s paternal aunt, on Saturday 07 April 2012.

She is a botanical doctor and stays in Stellenbosch, which is where she and her family received the tragic news that brought them first to Kimberley and then took them to Griekwastad on Saturday 07 April 2012. Her parents lived in Kimberley where she had this conversation with the minor that Saturday evening. She was reluctant to traumatise him further and refrained from asking him what happened. However, as they discussed funeral arrangements he kept on saying “tannie kan my enigiets vra. Ek sal tannie alles vertel maar oupa-hulle moenie weet nie, want sussie het nog gelewe.”

The minor recounted that the family sat on the lawns that late Good Friday afternoon. They entered the house through the back door. His father then spoke to his (the minor’s) paternal grandmother telephonically. He went to and was in the barn when he heard gunshots and thought: “Ah, plaasaanval.”

On re-entering the house after a while he found his parents dead. His sister grabbed him, tore his T-shirt and scratched his neck. She was busy dying and told him that she loved him. His shirt was bloodied. He changed it and returned to the barn. On reaching the Isuzu van he heard a second round of gunfire. He said he had forgotten about this second round of gunfire and only told the police about it on Saturday morning (07/04/2012). The second series of gunfire shocked her.

“Adv Cloete (State Counsel): Hoekom was dit vir u skokkend? --- Want daai mense was – die indringers was in die omgewing van die huis terwyl - of selfs in die huis terwyl [die seun] `n skoon hemp aangetrek het.

Het u toe dit met hom bespreek hoekom u hierdie mededeling skokkend gevind het? --- Ja, ek was verbaas en het gesê [seun], maar besef jy hierdie mense was saam met jou in die huis. ‘Dit kan wees tannie, ek dink dis moontlik.”’

Ms Smith testifies further:

“Ek het eers toegelaat dat [die seun] vir my die hele storie vertel voordat ek aan hom vrae begin stel het. En my eerste vraag was [seun], hoe dink jy, daar was geen vensters en goed stukkend nie, hoe dink jy het daar mense in die huis gekom. En hy het gesê tannie, ek dink dis toe ons koedoes gekyk het, het hulle by die agterdeur ingekom en in die huis weggekruip. En toe sê ek maar waar sou hulle weggekruip het, toe sê hy in die hoofslaapkamer en in die badkamer, die hoofslaapkamer se badkamer. En toe sê ek maar [seun] in daai tyd is niemand toilet toe nie? Het julle nie gaan hande was voor ete nie, want jou ma –-- was baie gesteld op higiëne, moes altyd handjies was voor ete. En toe trek hy sy skouers op, toe sê hy ek weet nie tannie, dalk het hulle tussen die bed en die vensterbank weggekruip in die hoofslaapkamer.”

Ms Smith proceeds:

“En hy het gesê my pa het daar by die eetkamertafel gelê. Sy woorde was: ‘Dit het gelyk of pa wou keer en toe het hy gegly in die bloed en geval.”’

Subsequently:

“Ek het gevra [seun], het die honde nie geblaf nie. Toe sê hy die honde het vroeër die middag toe hulle na die koedoes wou kyk, onder by die perde geblaf.”

It is common cause that the minor’s guardian, Mr Bennie Heckroodt, and his wife were in the house at this time but not part of the conversation. Mr Heckroodt is on the list of witnesses but did not testify. He advised the minor with the legal team throughout the trial.

24. To Ms Elizabeth Vermaak, also the minor’s paternal aunt:

Ms Vermaak corroborates her sister’s (Ms Smith’s) account on what the minor said and what happened at their parental home in Kimberley. She adds that the minor reported to them that he had consulted a psychologist earlier that day (07/04/2012). That he informed the psychologist that he was aware that a trust has been created for himself and his late sister and wanted to know from her how the inheritance will now devolve. She informed him that under the circumstances he stood to inherit everything. He told the psychologist that: “Ons Steenkamps word gou kwaad, maar ons word ook gou goed.” The minor did not elaborate at the time and would not furnish any context when he testified. This evidence was not objected to by the defence. The minor was also cross-examined on this aspect without any demur. The ambit of s 36(1) of the Child Justice Act is wide. It provides:

“s 36 Confidentiality of information obtained at assessment

(1) Any information obtained at an assessment is confidential and-

(a) May only be used for any purpose authorised by this Act, including at a preliminary inquiry; and

(b) Is inadmissible as evidence during any bail application, plea, trial or sentencing proceedings in which the child appears”.

This evidence was not proffered by the psychologist but was volunteered by the minor. The evidence does appear to be admissible and a court may not exclude relevant and admissible evidence. However, I will leave this question open and attach no weight to the evidence for present purposes.

25. The following facts, factors and circumstances militate strongly against a stranger-intruder having committed the murders. Some aspects to be dealt with go much broader and are not confined to a stranger-intruder. These matters have to be looked at individually, severally and cumulatively.

26. First: It is common cause that each one of the three deceased were shot and killed with the .22 rifle and the .357 revolver, the property of the minor’s parents. Dr Fouchè testified that, and this was common cause and even conceded by Mr Coetzee, for the minor, that all the deceased were first shot with the .357 revolver in their bodies. These gunshots were not fatal but would have immobilised or incapacitated them. However, the teenage girl could still have been able to move around. In order to kill them each one of the deceased was subsequently shot in their heads, the minor’s parents were shot in the back of the heads.

27. Second: The firearms were in the main bedroom, occupied by the minor’s deceased parents and less than four (4) metres from the minor’s bedroom. The indications are that the shooter could not have had both firearms with him contemporaneously and must have returned to the main bedroom to fetch the .22 rifle. Two shooters would not have waited for each other to finish shooting before the other took his/her turn. The defence admitted in their heads of argument that the shooter must have been familiar with surroundings and even with the layout of the house.

28. Third: These firearms were kept in a safe which was kept locked, although the keys were apparently left on top of the safe or nearby. During the evening in question the police found the safe open with the keys dangling from the safe keyhole. Exh B, photos 79 and 80. The photos depict several firearms still in the safe. These would have been rich pickings for intruder farm-murderers.

29. Fourth: The police found the front door bolted and chained. No access could have been gained by the intruder through this door. The backdoor (the kitchen door) was found open. The lights were on and the TV was playing. The minor and his defence suggested that the intruder must have slipped into the house through the front door unobserved because the family was relaxing on the lawns at the back of the house. They hoped to watch koedoes roaming in the valley. The family exited and re-entered the house through the backdoor. There is no possibility that the intruder, apparently a lone-ranger, could have entered the house through the back door unnoticed. The dogs would certainly have barked. This was testified to by the deceased’s family and friends: Ms Smith; Mr Paul Botha; Mr Jannie Ludick; and Police officer Mohitlhi who had to interrupt the video recording of the crime scene as the dogs would not leave him alone.

30. Fifth: The intruder could not have broken into the house because the front door and windows were intact. There was no forced entry. Irrespective of how the intruder may have entered the house, the defence suggested that the family prevented the unwelcome guest from making his/her escape when they entered the house to watch the programme Vetkoek Paleis which commenced at 18h00 and concluded at 18h30. What the intruder would have been looking for or waiting for or wanted to achieve up to this point truly escapes me. The minor could not explain this phenomenon in evidence either nor could Mr Coetzee in argument and attorney Bode subsequently.

31. Sixth: The minor variously reported to a number of witnesses that he went to the barn when Vetkoek Paleis was in progress but more assertively after watching its tail-end. This signifies, in the latter event, that he went to the barn after 18h30. It is common cause that the following cellphone communications or attempts to do so took place just before and after the three deceased were gunned down. Capt Moller of SAPS, a communication analyst and forensic cellphone examiner, testified as follows on this aspect:

a) At 17h49 the minor’s father made a cellphone call to his father (the minor’s grandfather) lasting 22 minutes;

b) At 18h34:14 the minor’s mother texted a message to her sister, Mariëtta Massyn, enquiring innocuously about flights;

c) At 19h02 a text message was received from Ms Sunnet Boshof on the cellphone of the minor’s mother, which went unanswered;

d) At 19h06 a missed or call forward was received from Ms Elsa Van Niekerk and at 19h20 from one Romie on the cellphone of the minor’s mother. On the evidence, at this stage the deceased were all already dead;

e) The statement in (d) above must be correct because the police evidence and phone records show that at about 19h00 the minor was at the Police Station, reporting the murders;

f) State counsel must accordingly, be right, and Mr Coetzee has fairly conceded, that the intruder/murderer must have been in the house for at least 45 minutes (17h49 – 18h34). To what end?

g) As far as the minor is concerned he made a voice call at 17h59 that lasted four (4) seconds to Mr Cornelissen which must have been put down (or dropped) according to Capt Moller. The minor’s next call was to his grandfather at 19h02 which lasted 115 seconds. He was then already in town;

h) In my view, the State’s postulate, based also on the exercise carried out by Col De Waal, the minor could not have been in the barn for 10-15 minutes or at all. At 18h34 his mother was still alive. Add 15 minutes to 18h34 and it puts you at 18h49. Capt Japhta received a call from W/O Wildt at about 19h00. It leaves virtually no time for hiding a second time in the barn and driving the 10 km stretch from the farm to Griekwastad, at whatever speed. Hiding in the barn can therefore be safely discounted. This point Mr Bode fairly conceded.

32. Seventh: The aforegoing convoluted explanations had to be given by the minor because, irrespective of where the four family members were seated when they were watching Vetkoek Paleis from 18h00, there is no way that an intruder could have sneaked into the main bedroom undetected. This is so because access to all four bedrooms can only be attained via the open-plan living area (kitchen, TV-room, sitting-room and dining-room) into a single passage. In any event why would an evil-minded intruder bent on murder want to sneak into the bedrooms? Mr Coetzee conceded during oral argument that the suggestion has its difficulties. My observation during the inspection-in-loco was exceedingly helpful in this regard. No store can be placed on Mr Bode’s utter conjecture on this aspect.

33. Eighth: Placing himself in the barn is pivotal to the minor’s defence. This is so because if this is not where he was during the murders then he must have been in the house with his parents and sister when they were killed. If I have to be extremely charitable to the minor I would have to find that he witnessed the shooter eliminate his family; a less charitable view would be that he was in cahoots with the shooter; or, the least charitable scenario would be that he must have pulled the triggers of the smoking guns that he later that evening delivered to the police. This is how the minor tripped himself up:

(a) He went to the barn to phone a friend. The proved fact is that his call to Cornelissen went unanswered at 17h59. This was before Vetkoek Paleis started;

(b) He went to the barn to clean and/or to put away his knife and/or the knife had to be put in the safe. This knife must have been very special. Something curious is that amongst the three things that the minor reported missing was his father’s knife. It won’t even cross a ruthless murderer’s mind to take only a knife and leave several firearms, unless the knife was studded with diamonds and he knew it;

(c) He went to the barn to fix a searchlight (hunting lamp). A slight variation to Mr Ludwick was that when he was at the barn, for whatever reason, he decided to fix the searchlight. When the police arrived at the scene the lights in the house were on but the barn was in darkness. The barn-lights were in working condition because the police switched them on. The minor responded to my enquiry by stating that he intended working on the searchlight in the barn, but did not have to switch the barn-lights on because he moved to one of the windows. According to the uncontested evidence of Dr Nicola Loaring, who has a doctorate in Astrophysics from the University of Oxford in the United Kingdom (UK), and employed as a professional astronomer at the SA Astronomical Observatory, sunset on the Naauwhoek Farm on 06 April 2012 was at 18h18. As far as the degree of illumination was concerned civil twilight ended at 18h42 and the full moon rose at 17h55. The atmospheric conditions were good. Without any additional artificial light one could (in the open) have seen clearly for at least 28 yards.

It is axiomatic that it would have been much darker in the huge barn with comparatively small windows, which I observed during the inspection in loco, although they were not measured. Photos 195 and 196 of Exh “B” depict them. According to the minor the two opague sliding doors were opened only wide enough to allow him access into the barn. This would have compounded the poor visibility indoors.

The minor’s truncated explanation on this aspect has too many loose ends and does not add up.

34. Ninth: As pointed out earlier the minor informed at least two witnesses that whilst he was in the barn he heard his sister scream. He now denies, falsely in my view, that he informed anyone that his sister screamed. The fact of the matter is that the minor’s sister bled profusely between the barn and the house (about 16 metres from the barn). It matters not whether the two loose stones and the blood puddle that were soaked in the minor’s sister’s blood, were at point “N”, pointed out the same evening by Mr Scholtz to the official photographer, Mr McAnda, or at point P, pointed out by the minor on Saturday 07 April 2012. What matters is that when the first police arrived on the scene Mr Scholtz pointed out the spot where the dogs were lapping up the girl’s blood. What we observed through the window, depicted in photo 196 of Exh “B”, is that both points “N” and “P” and the tree as a fixed point were clearly visible. The front door of the house, through which the minor suggested that the intruder might also have entered the house, is also clearly visible. If the minor wanted to see what was happening to his sister at “N” or “P”, he would have.

35. Tenth: Capt Marius Joubert of the SAPS attached to the Forensic Science Laboratory in Cape Town and employed as a forensic biology crime scene expert, described the spot (at para 34 Ninth) as follows when asked whether the grass that was visible on the girl’s bloodstained T-shirt, where she was found dead next to her mother in the house, lodged there before or after she bled. The answer was:

“My Lord, the bloodstain pattern on the side of the victim, [Ms M] was already there before she made contact with the grass and the gravel. Because blood, its physical characteristics, it has adhesive properties. So the bloodstain was already there when she made contact with the grass and the gravel and they adhered to her bloodstain on her back and on her side, my Lord.”

36. Eleventh: The minor acknowledged that he saw the blood at point “N”/ “P” when he left the barn for the house after he heard the (initial) gunshots. He said he was too scared to peep through the window which is directly in line with the bloodied spot. In my view the minor adopts this stance to avoid describing the alleged attacker whom he could not have missed seeing. The minor curiously shifted the point where his sister bled, from point “N” by 5.1 metres to point “P”. Point “N” creates a problem for the minor because on emerging from the barn door point “N” would be more than 5.1 metres to the left of the bee-line to the house. Even point “P” is quite a bit to the left of the bee-line. The minor does not say what attracted his attention to the blood, unlike Mr Scholtz who saw the dogs lapping up the blood. On what basis then would a touted scared 15-year boy who fears for his family’s safety spot the blood out of his line of vision. I would still have had my doubts even if point “P” is accepted as the correct point of bleeding under the circumstances sketched by the minor. But the main reason why I reject it as unreliable is because point “P” was pointed out after the objective physical evidence (the bloodstains and bloodied stones) had been removed. Mr Coetzee fairly conceded that my postulated approach on this point cannot be faulted.

37. Twelfth: If the minor reacted as described by his relatives, and also by the investigating officer and further when he testified in court then it would be fair to say of him the deaths of his family “left him cold”; indifferent. He saw his father sprawled and full of blood. He looks at him and walks past. Next he sees his mother prostrate and bloodied and adopts a similar attitude. His beloved younger sister of 14 years, who was heavily wounded, strains every sinew, evidently to summon help; even on the minor’s own account to Pastor Otto in para 18 (above), reaching out to him for help, was pushed away. He says he was repulsed by her blood. How can a regular hunter be so blood-squeamish. He has his cellphone with him. He does not call an ambulance or the police or a relative. All he can think of is to change his T-shirt which was soaked in his sister’s blood and drive some 10 km away purportedly to raise the alarm. I reject the minor’s statement that his sister would have told him that she loved him. The circumstances militate strongly against such endearment.

38. Thirteenth: Perhaps one of the most porous suggestions by the minor is that the farm-attacker would descent on the farm as a lone-ranger; would come on foot; would come unarmed; would evade the occupants of the house to reach the firearms at the furthest point in the house; kill the three deceased with their own weapons; spare the minor, who was with the intruder in the house, for no distinguishable reason from the others; take only the elusive knife and a bundle of duplicate keys of the very house but leave the safe keys in the keyhole; leave R32 000,00 in cash and three wallets belonging to the three deceased containing wads of cash; walk away on foot when an appealing twin-cab Isuzu (Exh B photo 8) and a Colt van, both with the keys dangling in their ignitions, were there for the taking and then with his mission accomplished, discard the firearms next to the road 50 metres from the house. This Rambo is now once more unarmed. Perhaps when confronted by the police or the Neighbourhood Watch he would stick up his hands in the air and say: “Sorry, I got lost.” If this was true the attacker would be dubbed the dumbest farm-attacker ever in South Africa.

39. Fourteenth: What betrays the minor even further is that it was common cause that there were other firearms and lots of ammunition in the safe. It was also common cause that the minor was adept in handling an assortment of firearms and had free access to them. On a video footage headed: “Skiet van die perd af”, the minor is seen shooting at a target from a horse in full-flight under the watchful eyes of his parents. I have to agree with State counsel that if the minor believed that an intruder was on the prowl he would have summoned the police from the barn and thereafter armed himself with one of the unaffected firearms for protection as soon as he had entered the house.

40. Fifteenth: To demonstrate how unlikely it was for the minor to have spotted the firearms where they were purportedly discarded by the “dumb” intruder, when he (the minor) was driving at high speed, I allude to the following testimony by him. The photo showing the minor doing the pointing out was taken the day after the shooting (on 07/04/2012). He testified:

“Hof: Ek wil net kyk na die gras self, ek weet nie hoe vinnig groei gras nie. Goed. En kan ek net by u verneem [Mnr DD], waar u daar staan op foto 1, was u kaalvoet of het u skoene of iets gedra aan u voete? --- U Edele daar het ek tekkies aangehad.

Het us tekkies aangehad. En as `n mens kyk – u kan self kyk na die skerm hier voor my wat miskien ook beter is, blyk dit vir my, sê maar as ek verkeerd is, dat die tekkies nie sigbaar is nie. --- Nee Edele.

So en u sê daardie gras of bossies, was miskien so 15 cm’s (sentimeter) hoog? --- Dis moontlik u Edele. Ek is nie seker nie, maar dit is moontlik.”

The “Nee Edele” must be understood as “Ja Edele.” The minor had to drive off the road to pick up the firearms. I have no hesitation in rejecting his explanation. Like the blood of his sister, Ms M, at point “N, he spots the unspottables.

If the highlighted bold points from “First” to “Fifteenth” (paras 26-40) (above) are co-incidences or sheer luck then the minor must have been born under the luckiest stars ever.

41. That the three deceased were murdered is common cause. The whole exercise up to this point has been to discover who did it. Dr Lemainè Fouchè is a pathologist of many years’ experience. Her expertise and credentials and indeed her findings were either not called into question or were half-heartedly challenged. She gave detailed and very enlightening evidence. In the context of this case, for now, I need only deal with the salient aspects of the medico-legal post-mortem report:

41.1 In respect of the minor’s father the doctor noted:

“Die vernaamste lykskouingsbevindings in verband met hierdie liggaam die volgende was –

1. Die liggaam van `n oormassa blanke man met tekens van ontbinding. Daar was `n inskietwond agter die linker oor, asook `n inskietwond bokant die regter klavikel asook `n inskietwond in die regter borskaswand. Die brein is geswel, daar was `n defek in die 7de interkostale spasie regs. Daar was `n defek deur die regter deel van die diafragma met beserings van die lewer. Daar was ook `n defek in die onderkwab van die linker long. Daar was 1500 ml bloed in die abdominale holte. Die projektiele is verwyder (een vanuit die linker long en die ander in die linker boud weefsel) en aan die ondersoekbeampte oordandig.

OORSAAK VAN DOOD

As gevolg van my waarnemeings het ek tot die gevolgtrekking gekom dat die oorsaak/oorsake van die dood die volgende was:

Veelvuldige skietwonde.”

41.2 In respect of the minor’s mother Dr Fouchè noted:

“Die vernaamste lykskouingsbevindings in verband met hierdie liggaam die volgende was –

1. Die liggaam van `n volwasse blanke vrou met `n inskietwond regs agter op die skedel, asook ‘n inskietwond voor op die buik en `n uitgangswond agter op die rug. Daar was laserasies van die hilum van die linker nier met 355 ml bloed in die buikholte. Metaal fragmente is in die brein gevind.

OORSAAK VAN DOOD

As gevolg van my waarnemings het ek tot die gevolgtrekking gekom dat die oorsaak/oorsake van die dood die volgende was:

Veelvuldige skietwonde”

41.3 In respect of the minor’s sister Dr Fouchè found:

“Vernaamste lykskouingsbevindings in verband met hierdie liggaam die volgende was-

1. Die liggaam van `n blanke vroulike tiener met veelvoudige laserasies op die kop, oë wat toegeswel is, defekte met die voorkoms van inskietwonde asook `n uitgangswond op die laterale aspek van die regter borskaswand. Daar was ook krapmerke, kneusings en oppervlakkige skaafwonde teenwoordig. Daar was defekte in die regter long asook in die regter thorakale wand.

OORSAAK VAN DOOD

As gevolg van my waarnemeings het ek tot die gevolgtrekking gekom dat die oorsaak/oorsake van die dood die volgende was:

Veelvuldige skietwonde.”

All the deceased were shot at close range.

42. Dr Fouchè testified that the .22 gunshot wounds caused instantaneous death. This must be so. Of immense significance is the evidence of W/O Phillemon Nhlapo. He is an expert on ballistics and attached to the Ballistic Section of the Forensic Science Laboratory of SAPS in Cape Town. He also attended the post-mortem examination with Capt Joubert conducted by Dr Fouchè. The evidence of the three are consonant where their fields of expertise converge or conflate. He testified that each one of the deceased were shot through his/her body with the lighter calibre Magnum .357 first and, when they were already prostrate, then executed with the heavy calibre .22 rifle; almost without exception through their heads. The following excerpts encapsulate it all:

“State Counsel: Yes. And then paragraph 8. Paragraph 8 contains the conclusions you reach as a result of what you observed of the wounds. === Yes My Lord.

Yes, you can then move to paragraph 8.1. === 8.1 will read as follows: The wound mentioned in paragraph 5.1 was caused by the bullet fired with a downwards trajectory My Lord.

And just to remind ourselves Warrant Officer Nhlapo, this wound we see on photos 20 and 22 of exhibit “FF”, is that correct? === That’s correct My Lord.

While we are on this particular wound, would this be consistent if somebody who is sitting and getting up from the sitting position when such a wound is inflicted? === That’s correct My Lord. The upper body of the person being exposed to the shooter, slightly bent into the shooter My Lord.

Court: Bending forward? === Forward My Lord.

Mr Cloete: And then you can move on to paragraph 8.2 and read it out for purposes of the record. === 8.2: The wound mentioned in paragraph 5.2 was caused by the bullet fired from the right with a downwards trajectory My Lord.

And again, these are the wounds we see on photos 19 and 23 of exhibit “FF”, namely the wound on the right side of [Mr D], is that correct? === That’s correct My Lord.

And you say this was also with a downward trajectory? === That’s correct My Lord.

Then you can move on to paragraph 8.3. === 8.3: The wounds mentioned in paragraph 5.3 was caused by a bullet fired from the left to the right My Lord.

Now what is important here, and this is the wound which we see on photo 24? === That’s correct My Lord.

Of exhibit “FF”. While we are on this particular wound. Is it possible that the shooter was standing up and the deceased was lying down when this particular shot was fired which caused this wound? === That’s correct My Lord.

Yes. And then I would like you to move to paragraph 8.4. === 8.4: The wound mentioned in paragraph 6.1 and 6.2 were caused by a bullet fired from the back to the front My Lord.

Okay. And again we now know these were the bullets fired as recorded and the wounds recorded on photos 15 and 16 of exhibit “FF”, is that correct? === That’s correct My Lord.

When one looks at paragraph 8.5 can you just present your findings or your conclusion in this regard? This is now the wound as we know at the back of the head of [Mrs C]. We are at 8.5. === The wound mentioned in paragraph 6.3 was caused by the bullet fired from the back of the head of the deceased towards the front My Lord.

And this is the wound we see on photo 17 of exhibit “FF”, is that correct? === That’s correct My Lord.

Yes. Now is it possible that the deceased was already prone in a lying position when she was shot in this manner? === Indeed My Lord.

And then also – then you can move on to paragraph 8.6. === 8.6: The wound or the wounds mentioned in paragraph 7.1 and 7.2 were caused by a bullet fired with a downwards trajectory.

Okay. And these are the wounds we see in photos 3, 4, 5 and 6 of exhibit “FF”, is that correct? === That’s correct My Lord.

These are the wounds [in respect of] the deceased [Ms M]. And then also you can read out paragraph 8.7. === 8.7 read as follows; The wound mentioned in paragraph 7.3 was caused by the bullet fired from the back of the head of the deceased towards the front My Lord…

But again the question is, from your observations and from what you can recall from your observations. Is it possible that the deceased was already lying down when she was administered this particular wound? === That’s correct My Lord”. (Emphasis added)

43. The hypothesis or reconstruction of events or of the scene is that after the minor’s mother was shot (back-to-front) the minor’s sister [Ms M] was next. The observation was that Ms M sustained “a wound with the appearance of a bullet entrance wound on the top area of the breast… with the appearance of a bullet exit wound on the right side of the ribs”. The wound was caused by a .357 revolver. This bullet pierced the prefabricated wall of the living area of the house, ricocheted outside and impaled against the barn wall, some 30 metres away where the minor claims to have hidden. The injured Ms M fled the house, collapsed on the lawn at point “N”, hence the grass that acceded to her T-shirt due to the adhesive properties of the blood. The girl somehow heaves herself up and returns to the house. I enquired from Capt Joubert:

“Court: And from the pictures drawn on this canvas, are you in a position to say or not, the linear bloodstains on the [outside of the door] were made by someone exiting or entering the house? === The bloodstains on the door, My Lord? Is that at point 1, the castoff patter you referring to My Lord?....

Mr Cloete: My Lord, it is photo 22 and 21 of exhibit “B”. That is photo 4 Annexure A of exhibit “OO”. Photo 4. Annexure A, “OO”.

Court: Yes. That is the photo that I am referring to. I am not so sure what, whether it matters or not, maybe it does, but are you able to respond to this question? === I am going to try my best, My Lord. Looking at the stain created, it is most probably created by the right hand of the victim, [Ms M]. For the stain to be created, she must have already had a lot of blood on her hands and her arm, to create that specific [castoff patter]. And in my opinion, that is on her way into the house, that specific stain was created, because it took some time for the blood to saturate on the side of the T-shirt and accumulate on her hands and her arm, to actually create that type of stain, My Lord. So in my opinion it is on her way in, into the house, My Lord”.

It is apposite to enquire once again how probable is it that the minor, if he was not the perpetrator, could not have noticed any of these events unfolding?

44. I now wish to deal comprehensively with a weighty matter: Whether Ms M was raped and if so by whom. It is unfortunately necessary to record all the injuries sustained by her as noted by Dr Fouchè at para 4 (4.1 - 4.20) of the post-mortem report. Dr Fouchè intimates that this girl fought like a tigress to defend herself against her assailant. The overwhelming majority of the non-fatal injuries have been described by the doctor as defensive injuries as she warded off and parried the incessant blows. The doctor recorded:

“4. Uitwendige voorkoms van liggaam en toestand van ledemate:

4.1 ‘n Laserasie 1,5 cm lank net links van die midlyn op die frontale been.

4.2 ‘n Defek, 6 mm x 4 mm, 1 cm bokant die mediale hoek van die linker oog. Die randte vertoon geskroei. Die defek het die voorkoms van ‘n ingangswond.

4.3 Twee kneusings wat wissel in groote (die grootste: 2 mm x 1 mm in deursnit) bokant die regter oog in lyn met 4.2.

4.4 Beide die oë was toegeswel en blou verkleur.

4.5 ‘n Ronde defek, 6 mm in deursnit, waarvan die randte geskroei is net links van die neusbrug.

4.6 ‘n Laserasie, 2 mm lank net langs die regter neusvleuel.

4.7 Verskeie laserasies wat wissel in lengte (1 cm -3 cm agter op die kop).

4.8 ‘n Reelmatige defek, 6 mm in deursnit in die midlyn net onder die (agterkop) occipitale rif. Die defek het die voorkoms van ‘n inganswond.

4.9 Die posisie waar ‘n chroomkleurige metaal fragment in die bra vasgesit het. (Afkomstig van projektiel).

4.10 ‘n Reëlmatige defek, 11 mm in deursnit, 7 cm regs van die midlyn, langs die tepel en 130 cm van die regter hak. Die defek het die voorkoms van ‘n inskietwond.

4.11 ‘n Defek, 2 cm in deursnit, 18,5 cm regs van die midlyn en 126 cm van die regter hak. Die defek het die voorkoms van ‘n uitgangswond.

4.12 ‘n kneusing, 2 cm x 5 mm, mediaal tot 4.11.

4.13 ‘n Oppervlakkige skaafwond, 3 cm x 2 cm op die voorkant van die linker knie.

4.14 Oppervlakkige krapmerke, wat wissel in lengte op die rug, bokant die linker boud.

4.15 Krapmerke op die buitekant van die linker bo- en onderarm.

4.16 ‘n Kneusing, 12 mm lank op die dorsum van die linker hand.

4.17 Kneusings, wat wissel in lengte (6 mm – 7 mm) op die dorsale aspek van die linker indeksvinger.

4.18 Klein snywonde op die binnekant van die pinkie van die linker hand.

4.19 Radiologiese skandering van die liggaam toon fyn radiodigte fragmente in die skedel, regter borskas, asook ‘n projektiel in die omgewing van die linker oog.

4.20 Uitwendige ondersoek van die perineum toon ‘n oppervlakkige skaafwond, 3 mm x 2 mm in die 18:00 posisie op die posterior fouchette asook op die fossa navicularis. Daar was ‘n “cleft” (vorige skeur in die hymen) in die 19:00 posisie. Geen beserings kon in die anale area waargeneem word nie.” (Emphasis added)

45. Paras 4.14 and 4.20 in bold of the autopsy report (above) are particularly pertinent to the rape question. In respect of para 4.20 Dr Fouchè was emphatic that there was sexual penetration. She states that the injuries could have been sustained because there was no foreplay or lubrication of the intimate genital anatomy. She was also unambiguous that the injury was inflicted within 12 - 24 hours of the girl’s death. This determination is made on account of the fact that the healing capacity of this specified sensitive genital area is extremely quick.

46. Dr Fouchè’s evidence is corroborated by Dr Jacobus (Trompie) Els on this aspect. He is attached to the Department of Health in the North West Province, Mahikeng, as a forensic medical practitioner. His vast experience and expertise was acknowledged. He was furnished with five colour photos of the genital anatomy of the rape victim, Ms M. He explained in detail the precautions taken to work from such colour photographs and the disadvantages that lurk. His methodology was not questioned.

47. The State went to this length because full sexual intercourse did not take place nor was there any semen ejaculated into the girl’s genitalia. It is in this context that the following remarks by Dr Els should be understood (Exh “V”):

“Commentary on the redness of the fossa navicularis – 04:00 via 06:00 to 08:00:

Commentary on colour changes visible on a photograph should be treated with great circumspection. Structural changes as seen with the hymeneal cleft can be validated. However, the red area under discussion, differ from the immediate surroundings.

The possibilities are:

• The photo could have been tampered with. The photographer can testify that these exposures were not subjected to tampering.

• Real redness due to trauma inflicted. This observation can only be confirmed by the Pathologist who performed the autopsy.

[Four bullet points omitted in view of confirmation of all six variables]

If all the variables are excluded the real redness due to trauma survives the test of time the commentary will be as follows:

i. If an imaginary horizontal line is drawn through the middle of the vaginal entrance – the 03:00 to 09:00 line, injuries below this line are considered sexual assault related until proven otherwise. The opposite is also true – if injuries are detected above this imaginary line the consideration is not sexual assault related until the contrary is proven.

ii. The fossa navicularis and the posterior fourchette are susceptible to sexual assault related injuries because it forms the area of ‘first contact.’

iii. Due to the lack of lubrication (absent when foreplay was absent) and non-cooperative insertion, friction will be present. As a result of friction, bruising and even tearing can occur.

iv. Thus, if the existence of this redness can be confirmed, the opinion is that non-cooperative penetration or attempted vaginal penetration transpired. The object responsible for the penetration remains debatable.”

48. Dr Fouchè, the pathologist, confirmed the integrity of the photos. In the event Dr Els was forthright with his opinion that sexual penetration took place. His evidence under cross-examination is even more elucidatory:

“So die besering kon self toegedien gewees het? --- Ek dink ek het so probeer aandui u Edele. Ek het sover as moontlik probeer om te kyk wat die moontlike oorsake daarvan kan wees en dit nie net bloot gedig aan penetrasie nie. Ek dink nie my verklaring het dit op geslags penetrasie vasgepen nie.

Enige vorm van penetrasie? --- Korrek Edele.

Verby die groot skaamlippe dan nou? --- Juis.

Dis nie intra-vaginaal, hierdie penetrasie nie? –-- Nee Edele.

Intra-vaginaal, daar’s penetrasie in die vagina in nie, om dit so te stel? --- Ja ons moet net die begrip penetrasie dan net definieer, dink ek is die woord, die regs definisie daarvan is die geringste penetrasie. Ons wat uit die ouer skool kom het altyd gesê enige iets wat verby die groot skaamlippe sou gaan word beskou as mediese penetrasie. Regs penetrasie, die geringste penetrasie sê die nuwe Sexual Offences Act en hierdie area is beslis verby die groter skaamlippe. So dit word regstegnies as penetrasie beskou.”

49. In S v Johny Carter Case No: CA&R 37/2013: Delivered 27/09/2013 (Unreported) (Kgomo JP et Mamosebo AJ) the Full Bench of this Court had this to say in an analogous situation at paras 17 and 20:

“[17] What seems to have blindsided the constitutive Court is their unawareness that the slightest penetration of an orifice (per vagina or anally) constitutes rape. Milton JLR, South African Criminal Law and Procedure, Common Law Crimes, Vol 2, 3rd Ed, Juta, at page 448 pertaining to sexual intercourse, records:

“The slightest penetration is sufficient. Once penetration has occurred the necessary element for liability of the male is established”. Milton refers to S v F 1990 (1) SACR 238 (A) at 248 g-i where Kumleben JA raised the following:

“Die afwesigheid van semen is wel ‘n aanduiding dat gemeenskap nie plaasgevind het nie. Maar hierdie feit, of veronderstelling, doen nie noodwending afbreuk aan die afleiding dat daar tog penetrasie was nie. Dr Lamprecht se getuienis in diè verband is tot dien effek:

“…(B)eteken die feit dat ʼn persoon nie volledige of volle, ʼn manspersoon nie volle of volledige ereksie kan bewerkstellig nie, beteken dit noodwendig dat daar geen penetrasie was nie?--- Sekerlik nie. ʼn Man hoef nie volledige ereksie te kry om te kan penetreer nie. Inteendeel ʼn geringe mate van ereksie sal seker tot ʼn kleiner mate van penetrasie kan aanleiding gee. Hoe suksesvol gemeenskap dan kan plaasvind is natuurlik ʼn ander vraag, maar ʼn mate van penetrasie kan sekerlik nog plaasvind”.

At para 20 the Court in the Carter-case stated:

“[20] What should be added to the raft of oversights already enumerated is the fact that a focused mind would have alerted the prosecutor and the Magistrate that it is immaterial whether the rapist’s erect penis or a finger or a sexual aid hurt the complainant. Such act still conforms to the definition of rape as contemplated in s 1 read with s 3 of the Criminal Law Amendment Act (Sexual Offences and Related Matters) Act, 32 of 2007, which defines rape as:

“Rape occurs when one intentionally commits an act of sexual penetration with another, without that person’s consent.

‘Sexual penetration’ includes any act which causes penetration by –

• The genital organs into the genital organs, anus or mouth or;

• Any other part of body or, any object, into the genital organs or anus; or

• The genital organs of an animal into the mouth.”

The rape took place on 23/24 December 2007 and the quoted provision came into operation on 16 December 2007. The inexcusable aspect is that the conviction and sentence took place on 30 July 2009.”

50. I am accordingly satisfied that this teenage girl was raped (not for the first time). I make bold to say that whoever raped the innocent girl on the second occasion also perpetrated the murders, regard being had to the time-line and other factors. Let us examine her movements briefly from the time her school in Bloemfontein closed on 23 March 2012. The schools were due to re-open on 10 April 2012, but it never did for her. It is common cause that she and the minor spent the weekend and period of 02 – 06 April 2012 on the family farm, Naauwhoek, with their parents. Their domestic helper, Ms Watermond, was there or thereabouts most of the time. None of the children had a friend on the farm during the latter crucial period.

51. On the fateful Good Friday the entire family attended a church service and thereafter visited one of their families and returned home. It seems fairly acceptable that there was some horse-riding by the minor and his sister elsewhere on Naauwhoek Farm, away from the glare and stare of their parents. It is also common cause that during his effort to piece together what really happened on 06 April 2012, to enable him to track down the perpetrator(s) of the crime, the minor was asked by Col De Waal, with his guardian in attendance, to explain the scratch mark on his neck. He reported to the colonel that he fought with his deceased sister on the afternoon in question. He claimed loss of memory on what instigated the fight. Even when he testified he stuck to that position. I am satisfied that the minor could not have forgotten what instigated the alleged “fight” with his sister a few hours earlier. Surely the incident was still very fresh in his memory, more so that the physical evidence, the excoriation on the neck, was captured on photos 1 and 2 of Exh “B” the same night.

52. It is convenient to point out at this stage that the minor was unable to explain how his own blood came to lodge on his pants, in front and at the back. Capt Joubert was of the view that the most probable source of the blood was that the minor had a nose-bleed as he did not sustain any cut wounds that bled. It was suggested that this could have happened when Ms M defended herself against the minor’s onslaught on her. This, in my view, is a logical inference to make if regard is had to the other factors, some of which are adverted to later.

53. As pointed out earlier, para 4.14 of Dr Fouchè’s autopsy report records:

“Oppervlakkige krapmerke, wat wissel in lengte op die rug, bokant die linker boud.”

53.1 On testifying on this aspect Dr Fouchè elaborated as follows, in-chief:

“Dan wil ek u verwys na die bevindings wat u gemaak het op paragraaf 4.14, die opervlakkige krapmerke. Ons het reeds ‘n foto voor sy Edele geplaas wat huidiglik as bewysstuk “AA1” voor die Hof dien. Hierdie oppervlakkige krapmerke, as ons kyk na die posisie daarvan, sou dit inpas by ‘n beweging waar ‘n person die broek van iemand anders aftrek? --- Ja dit sou.”

53.2 Under cross-examination of the doctor the following emerged: The recording starts at p 1274(14) of the record and ends at 1276(21). Only the salient aspects thereof are abstracted:

“Is dit die besering, as ek u kan help, 4.14? --- 4.14. Dat ek net by kom. Ja.

Nou as u praat van krapmerke, watter spesifieke gedeelte van hierdie besering verwys u na? As u moontlik net weer die Hof kan help en ‘n kringetjie om trek om hierdie area? --- Goed. ---.

Goed. Is dit moontlik dat hierdie beserings byvoorbeeld opgedoen kon word as sy sou gelê het op ‘n grond area en beweeg het daar? --- Nee.

Hoekom sê u so? ---. Weet u wat, ‘n krapmerk, die definisie van ‘n krapmerk sou ‘n mens sê dit is oppervlakkige liniêre laserasie, want dit is eintlik wat dit is of eintlik ‘n skaafwond. ‘n Oppervlakkige liniêre skaafwond en in hierdie geval het hy amper ‘n parallelle patroon, want daar is omtrent 3 [drie] merkies. ---.

Hof: Afwaarts? – Ja, afwaarts.

Me Erasmus: Die getuie illistreer afwaarts. --- Afwaarts.

Hof: Afwaarts. --- Want U Edele, die skaafwondjies het ‘n afwaartse patroon gehad van die vel wat daarop gelê het. Want onthou nou, dit is die loskom van die oppervlakkige vel lagie.

Me Erasmus: En in so ‘n geval sou ‘n mens nael skraapsels [vind] --- onder so ‘n persoon se naels? --- Dit, afhangende van hoe lank die naels is, is dit moontlik ja.

Nou as u ‘n tyd moet koppel aan die krapmerke wat u waargennem het? --- Dit was die tye of voor die, as ek nou reg kan onthou, dit was daar, maar dit was nie vreeslik rooi en geswel nie. So hy was al, die swelling se reaksie was al besig om te sak. So 12 ure. I do not, dit is moeilik om te sê want u weet, weereens die herstel van ‘n wond wissel van persoon tot persoon. Want daar is baie faktore wat daartoe bydra.”

In short the rapist scratched the rape victim with his nails when he forcefully undressed her of her shorts and panty.

54. In para 7.1 of their written submissions the initial defence counsel, experienced as they are, make the startling revelation that “dit is ons instruksies om die volgende voor te hou” (it is our instructions to make the following submissions), pertaining to the rape, inter alia:

54.1 AD PARA 10.1.1: If an incestuous relationship existed between the minor accused and his 14-year old sister there would not have been any motive for the girl to report the prior sexual activity to her parents.

This submission was ostensibly made to counter the State’s theory that the murders were perpetrated to conceal the rape. This submission is baseless because at no stage did the State suggest the existence of an incestuous love relationship between the minor and his sister. The State accuses the minor of rape. More fundamentally, it is not the defence’s case that an incestuous love relationship was extant and that consensual sexual intercourse took place. Besides nothing approximating this waffle was put to any of the witnesses nor did the minor broach the subject in his testimony. See President of the Republic of South Africa v South African Rugby and Football Union 2000 (1) SA 1 (CC) at 36J – 37J (paras 61 - 63).

54.2. AD PARA 10.1.2: The further submission is made by counsel (Adv Coetzee and his junior) that the evidence does not establish that the only reasonable inference is that the minor caused the injury to the teen girl’s private parts. “It could as well, for example, also have been caused by the deceased Mr D [the minor’s father]. It could also have been him [Mr D] who was responsible for the pre-existing rupture of Ms M’s hymen”. (The translation is mine)

It is futile and unacceptable for counsel to try and hide behind instructions which they purport were given to them on what argument to present (clearly after the horse had already bolted). Mr Coetzee had no answer to the dictum in R v Matonsi 1958 (2) SA 450 (A) at 456 A - D which I put to him. Where the Appellate Division stated:

“Such Roman Dutch writers as I have consulted emphasise the importance and high status of the advocate and I see no reason to doubt that his authority over the conduct of the case which he had been instructed to fight on behalf of a client was quite as full as that of the English barrister (cf. Klopper v van Rensburg 1920 E.D.L. 239 at p. 242). The English cases show that in general, trials cannot be conducted partly by the client and partly by counsel. Once the client has placed his case in the hands of counsel the latter has complete control and it is he who must decide whether a particular witness, including the client, is to be called or not. So in Seinfen v Lord Chelmsford 157 E.R. 1436 at p. 1449, POLLOCK, C.B., states the Court’s view that,

“a counsel has complete authority over the suit, the mode of conducting it, and all that is incident to it – such as withdrawing the record, withdrawing a juror, calling no witnesses, or selecting such as, in his discretion, he thinks ought to be called, and other matters which properly belong to the suit and the management and conduct of the trial”.

See also S v Majola 1982 (1) SA 125 (A) at 133 D - G.

55. Perhaps it is worth revisiting briefly the practice and the law pertaining to the duties and responsibilities of an advocate or an attorney for that matter. The following extracts from the Law of South Africa (LAWSA), First Reissue, VOL 14, Para 277 at pp 276 and 277 are apposite:

55.1 “Upon receipt of instructions the duty of the advocate is firstly to ascertain carefully the true facts, obtaining at the same time the proof of them. Secondly, as far as the law is concerned, s/he should determine whether there is a cause of action or defence”;

55.2 “Counsel who has no belief in the truth of an assertion and knows s/he has no evidence to support it is not entitled to put it to a witness during cross-examination”;

55.3 “Counsel is not a mere agent of the client; his duty to the court overrides his obligations to his client, subject to his duty not to disclose the confidences of his client”;

55.4 “An advocate is not entitled in defending a client to attribute to another person the crime with which his client is charged wantonly or recklessly, unless the facts or circumstances given in the evidence or rational inferences drawn from them raise at least a reasonable suspicion that the crime may have been committed by the person to whom the guilt is so imputed”.

To impugn the character, dignity and the memory of the deceased Mr D at such a late stage and so unfairly is inappropriate as it is hurtful to his family and friends.

56. As can be discerned the State relies on circumstantial evidence. This is how the Supreme Court of Appeal approached such evidence if an accused person could be convicted of an offence. S v Reddy and Others 1996(2) SACR 1 (A) at 8 c – 9 e captures it all:

“In assessing circumstantial evidence one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the oft-quoted dictum in R v Blom 1939 AD 188 at 202-3, where reference is made to two cardinal rules of logic which cannot be ignored. These are, firstly, that the inference sought to be drawn must be consistent with all the proved facts and, secondly, the proved facts should be such 'that they exclude every reasonable inference from them save the one sought to be drawn'. The matter is well put in the following remarks of Davis AJA in R v De Villiers 1944 AD 493 at 508-9:

'The Court must not take each circumstance separately and give the accused the benefit of any reasonable doubt as to the inference to be drawn from each one so taken. It must carefully weigh the cumulative effect of all of them together, and it is only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether the inference of guilt is the only inference which can reasonably be drawn. To put the matter in another way; the Crown must satisfy the Court, not that each separate fact is inconsistent with the innocence of the accused, but that the evidence as a whole is beyond reasonable doubt inconsistent with such innocence.'

Best on Evidence 10th ed 297 at 261 puts the matter thus:

'The elements, or links, which compose a chain of presumptive proof, are certain moral and physical coincidences, which individually indicate the principal fact; and the probative force of the whole depends on the number, weight, independence, and consistency of those elementary circumstances.

A number of circumstances, each individually very slight, may so tally with and confirm each other as to leave no room for doubt of the fact which they tend to establish. . . . Not to speak of greater numbers, even two articles of circumstantial evidence, though each taken by itself weigh but as a feather, join them together, you will find them pressing on a delinquent with the weight of a mill-stone. . . .

Lord Coleridge, in R v Dickman (Newcastle Summer Assizes, 1910 - referred to in Wills on Circumstantial Evidence 7th ed at 46 and 452-60), made the following observations concerning the proper approach to circumstantial evidence:

'It is perfectly true that this is a case of circumstantial evidence and circumstantial evidence alone. Now circumstantial evidence varies infinitely in its strength in proportion to the character, the variety, the cogency, the independence, one of another, of the circumstances. I think one might describe it as a network of facts cast around the accused man. That network may be a mere gossamer thread, as light and as unsubstantial as the air itself. It may vanish at a touch. It may be that, strong as it is in part, it leaves great gaps and rents through which the accused is entitled to pass in safety. It may be so close, so stringent, so coherent in its texture, that no efforts on the part of the accused can break through. It may come to nothing - on the other hand it may be absolutely convincing. . . . The law does not demand that you should act upon certainties alone. . . . In our lives, in our acts, in our thoughts we do not deal with certainties; we ought to act upon just and reasonable convictions founded upon just and reasonable grounds. . . . The law asks for no more and the law demands no less.'”

57. This is the approach which I was constrained to adopt. What the minor and the defence advanced was far-fetched conjecture. This was not helped by the fact that the minor, sadly, was an extremely poor witness. He was evasive and was totally discredited under cross-examination. Not only that but he was, unfortunately, at his age, an unmitigated liar. If, as I hereby do, reject his postulated visits to and hiding in the barn, as his alibi, his evidence must then be treated as if he never testified. See S v Shabalala 1986 (4) SA 734 (A) at 736 C-D; R v Dhlomo 1961 (1) PH H54, and S v Thebus and Another [2003] ZACC 12; 2003 (2) SACR 319 (CC) at 353 d-f (para 76).

58. It makes logical sense to me that the torture (“die marteling”) of the teenage deceased preceded the execution-style killing of all the deceased. I can’t imagine that the killer would sadistically torture the girl merely to derive pleasure in inflicting pain on her. The pictures and photos presented to Court are gruesome even with the blood washed off Ms M’s head and face. Why did the minor escape totally unscathed? Why was the killer so kind-hearted towards the accused minor? “Waarom was die aanvaller u so goedgesind?” State counsel enquired from the minor in cross-examination. Nonchalantly, he replied that he does not know. Mr Coetzee argued that it is for the State to supply the answer to its own questions. The State is not required to prove a negative or what was peculiarly within the contemplation of an accused’s mind at all relevant times. In S v Van Aardt 2009 (1) SACR 648 (SCA) at 659 d-h (para 39) the Supreme Court of Appeal cited with approval the following dictum by the Namibian Supreme Court of Appeal in S v Van Wyk 1992 (1) SACR 147 (NmS) at 161 e-h:

“The State is, from the nature of things, seldom able to offer direct evidence of the accused’s state of mind at the time of assaulting the deceased and must therefore rely on inferences to be drawn from the circumstances of the assault (including its nature and duration), the nature of any weapons used and the nature, position and extent of injuries inflicted. These must in turn be weighed up against any other circumstances…. This does not involve any piecemeal assessment or process of reasoning. All the relevant facts which bear on the accused’s state of mind and intention must be cumulatively assessed and a conclusion reached as to whether an inference beyond reasonable doubt can be drawn from these facts….

On the medical evidence the injuries which caused [the] death were the blows to the head. It is not possible to link up particular fist blows or kicks with particular injuries, nor is the trier of fact required to do so. Once it is established that [the accused] killed the deceased, and it has rightly been so found by the Court a quo, the trier of fact can look at the assault as a whole in order to determine what [the accused’s] intention was.

In a case such as the present the trier of fact is not required to enquire into the subjective state of mind of the accused as he inflicted each injury. Neither principle nor common sense requires this.”

59. I have deliberately refrained from commenting adversely or attaching any significance to the minor’s demeanour in the witness stand due to the length of the trial and that at 17 he is but a child who was subjected to searching but fair cross-examination. Except that I must say this: In the witness stand he showed no emotions. He has a strong voice and was assertive and confident. Even when he was painted into a corner he was not flushed. He never stammered or tripped over his words, even when he lied blatantly. He has a strong character. He is certainly not a wilting violet. I adopted this approach as advised in S v Kelly 1980 (3) SA 301 (A) at 308 B - D where Diemont JA held:

“There can be little profit in comparing the demeanour only of one witness with that of another in seeking the truth. In any event, as counsel conceded in a homely metaphor, demeanour is, at best, a tricky horse to ride. There is no doubt that demeanour - 'that vague and indefinable factor in estimating a witness's credibility' (per HORWITZ AJ in R v Lekaota 1947 (4) SA 258 (O) at 263) - can be most misleading. The hallmark of a truthful witness is not always a confident and courteous manner or an appearance of frankness and candour. As was stated by WESSELS JA in Estate Kaluza v Braeuer 1926 AD 243 at 266 more than half a century ago in this Court:

'A crafty witness may simulate an honest demeanour and the Judge had often but little before him to enable him to penetrate the armour of a witness who tells a plausible story.'

On the other hand an honest witness may be shy or nervous by nature, and in the witness-box show such hesitation and discomfort as to lead the court into concluding, wrongly, that he is not a truthful person.”

THE DEFENCE CASE

60. Having regard to the conspectus of the entire evidence in the trial it is evident that the minor’s most intractable concern was to give a plausible account of how his clothing came to be contaminated with his deceased sister’s blood. Hence his irreconcilable and therefore materially conflicting reports that Ms M died lovingly in his arms and, self-contradictorily, that he pushed her away violently because he was nauseated as she was awash with blood. The latter part of the statement was meant to explain how his T-shirt that he discarded in his bedroom before he reported the incident to the police was torn.

61. The ultimate version of the minor on this aspect was put as follows by Mr Coetzee to Capt Vermeulen, the expert on material analysis attached to the Scientific Analysis Section of the Forensic Science Laboratory in Pretoria, who examined the torn T-shirt:

“Die instruksies van die beskuldigde is dat met betrekking tot sy weergawe van hoe hierdie skeure aan die hemp plaasgevind het of gebeur het, wat dit veroorsaak het. Hy het op die betrokke aand van buite af ingekom en hy het om die toonbankie, u het nou miskien nie die toneel gesien nie, maar dit is nie nodig vir doeleindes van hierdie stelling nie, en hy het – vir [Me M] opgemerk waar sy – ʼn mens kan dit amper beskryf as sit/lê dis moeilik om dit te beskryf, maar op haar regterkanste boud, heup gedeelte op die grond was en die indruk wat hy gekry het was dat sy haar bolyf gestut het met haar regterarm. Dat hy nader aan haar beweeg het tot by haar en hy sê wat hy – hy kan nie onthou of sy hom vasgehou het aan sy T-hemp en haar opgetrek en die hemp toe geskeur het nie, en of sy op ʼn stadium toe sy weer – asof haar bene onder haar padgegee het, en aan sy T-hemp gehang het en weer grond toe gegaan het, en daar gaan lê het. Sou dit inpas met so ʼn weergawe wat u nou gegee het op u bevindinge? === U Edele soos ek reeds getuig het, die rigting van die krag wat op die T-hemp uitgevoer was is in ʼn afwaartse rigting teenaan die lyf van ʼn person wat die T-hemp sou gedra het indien dit die scenario was dat die T-hemp wel deur die beskuldigde gedra was. So dit was nie weg van die liggaam af nie. As hy in ʼn regop posisie was sou dit ooreenstem met die bewering dat dit in ʼn afwaartse rigting was.

In ʼn afwaatse rigting. Dankie Edele, ek het dan geen verdere vrae aan hierdie getuie nie”.

62. Under re-examination by State counsel the following emerged:

“Welke tipe beweging sal ʼn mens verwag van die oorledene dan wat die hemp sou geskeur het met die afwaartse beweging om die hemp te kan skeur? === U Edele dit sou waarskynlik ʼn ruk-aksie gewees het of ʼn vinnige aksie gewees het afhangende van die toestand van die hemp. Maar as ek in gedagte hou dat dit nie sommer maklik is om ʼn materiaal, veral T-hemp materiaal so te skeur nie, moes dit ʼn vinnige ruk-aksie gewees het wat die hemp geskeur het. En ek kan miskien net daar byvoeg Edele, die feit dat die skade of die skeure aan beide kante soortgelyk is, die hoeveelheid skade is soortgelyk, sê vir my dat die hande altwee – as dit ʼn person was [wat] die T-hemp vasgehou het, altwee weerskante van die skouers vasgehou het toe die skeur-aksie plaasgevind het.”

63. Having also assessed the minor’s evidence on how the T-shirt was torn I am persuaded that Capt Vermeulen’s evidence is credible and reliable, and I accept it. The captain’s evidence is not isolated in that, as will be adverted to in due course, Capt Joubert, the forensic biology crime scene expert, and Dr Fouchè, the pathologist, add a further dimension to this scenario which compellingly lead to the conclusion that the T-shirt could not have been torn inside the house, but outside, and not in the manner postulated by the defence. In his evidence-in-chief the minor testifies in this manner on this point:

“Mnr Coetzee: Indien wel, hoe het sy [Ms M] regop gekom? --- U Edele sy was, sy het regop gekom tot op haar voete. Ek weet nie presies hoe regop was haar lyf gewees nie, maar sy was op haar voete.

Wat gebeur toe? --- U Edele, ek was teen haar, sy het weer - vandat ek by haar gekom totdat ek geloop het, of totdat sy geval het by my, het sy my gesê sy gaan doodgaan en dat sy lief is vir my en nadat sy opgestaan het, sy was teen my en my hemp in die proses êrens geskeur, ek dink met die val.” (Emphasis added)

It is noteworthy that there is no mention by the minor concerning pushing his sister away. In my view the inescapable implication is that it was not necessary to push Ms M away as her body was already limp and sagged to the floor by itself and that the minor and his clothes were contaminated with Ms M’s blood outside the house.

64. Under cross-examination the minor made the following concession:

“Mnr Cloete: Maar op daai stadium, uit die aard van die saak, weet u nie wat hier gebeur het nie, behalwe dat hier ʼn skietery in die huis was wat klaarblyklik baie ernstig is, as dit wat u sê waar is. --- Ja Edele.

Maar nou is daar ʼn persoon wat vir u kan vertel wat gebeur het. --- Ja Edele.

En dis Me M. --- Ja Edele.

U vra nie vir haar wat het gebeur nie? --- Ek het nie gevra nie en sy het nie gesê nie Edele.”

This behaviour is incomprehensible for a concerned boy.

65. The reconstruction of the scene and the sequence of the events from the time of the shooting has been sketched as follows by Capt Joubert from my enquiry that it appears that the minor’s parents: “may have been unaware of an imminent attack on them, an impending attack on them. It seems that they were seated, they were relaxed. Also taking into account the blood trail and so forth and also the noise made by a firearm, if not fitted with a silencer, what would you say to try and assist the Court, if you can? === My Lord, I do agree with you, My Lord with the victims, [the minor’s parents], were caught unaware when the attack took place. If we look at the victim, [Mrs C], she was not facing the attacker at that stage, due to the entrance and exit wounds to her body. Also there was, I could not find any movement of the victim, [Mrs C], within that specific area. The same with the male victim, [Mr D]. He also received his injuries and went down in the position that we found him. And talking about the noise made by a .357 Magnum, in my opinion it would have been you could have heard it. I have not tested it, but you should have actually, could have actually heard that specific firearms going off and also if you look at the firearms that were used, it is firearms used from their own safe and also to get access to that safe. It [the safe] is attached this way that it is in view of the living room, in view of the TV room, where the victims were actually sitting at that specific time. And there was no forced entry at the house.

In other words, what you are saying is that if what is known, that they were shot with their, let me say their own firearms, is that the position? === Excuse me, My Lord?

You are working on the basis that the firearms belonged to the [minor’s parents]? === That is correct, My Lord.

Yes. Yes, carry on? === And also looking at the victim, [Ms M], we have established more or less the route that she actually took on her way back, into the house and in my opinion she was actually trying to call for help and at the phone she did not actually get the opportunity to make that call. And that ended up in the position that she was found”.

“Court: And is it possible at all to then say who the first victim or victims of the assault were and why? === My Lord, in my opinion the first victim would have been [Mrs C]. She was sitting on a chair, facing away, unaware and shot in the back. If she actually was aware, I think in my opinion, the entrance would have been in the front and then she would have been aware of her attacker. In my opinion that is the most likely scenario that she did not know about her attacker and she was the first one shot, in my opinion, My Lord. Looking at the second victim, it is a possibility that the victim [Ms M], was also in that living room area, when she received the first shot through the chest. I have not any actually any forensic evidence that can actually support that, but in my opinion it is the most likely second victim in that scenario. The third is the victim, [Mr D]. He is a big man. Maybe he was on the couch, watching TV, trying to get up, looking at the entrance wounds, it is more likely that he will be in an almost upright position, facing the attacker when he was shot. I cannot say the distance, I am not an expert on that specific wounds, but he was actually charging or not charging, but in line with the attacker when he was shot”. (Emphasis added)

66. State counsel has adverted to various pieces of evidence which he submitted are indicative that the minor either witnessed the shootings or was in fact the shooter. For me the following is the most telling:

66.1 Within an hour or so of the three deceased having been murdered he reported to Ms Henriëtte De Villiers (see para 20 in bold type above):

“Hy het ook gesê dat dit gelyk het asof sy pa opgespring het want hy het nie meer op die bank by die televisie gesit nie, hy het op die vloer gelê.”

66.2 The minor informed Ms Marianne Smith the day after the shooting (Saturday, 07 April 2012) – see para 23 in bold type:

“En hy het gesê my pa het daar by die eetkamertafel gelê. Sy woorde was: ‘Dit het gelyk of pa wou keer en toe het hy gegly in die bloed en geval.”

66.3 The two statements of what the minor observed tallies remarkably with the evidence of the pathologist, Dr Fouchè and that of W/O Nhlapo, the ballistics expert. The latter testified at para 41 (above):

“State Counsel: While we are on this particular wound, would this be consistent if somebody who is sitting and getting up from the sitting position when such a wound is inflicted? === That’s correct My Lord. The upper body of the person being exposed to the shooter, slightly bent into the shooter My Lord.

Court: Bending forward? === Forward My Lord.”

66.4 Capt Joubert, the forensic biology crime scene expert, sealed the convergence by stating at the end of para 65 (above) (in bold type):

“Maybe he was on the couch, watching TV, trying to get up, looking at the entrance wounds, it is more likely that he will be in an almost upright position, facing the attacker when he was shot. I cannot say the distance, I am not an expert on that specific wounds, but he was actually charging or not charging, but in line with the attacker when he was shot.”

In this respect, for the umpteenth time, the minor unwittingly betrayed himself.

67. In my view the torturer wanted to achieve something; and THAT something on the evidence was to have sexual intercourse with the girl. The girl refused and defended her modesty. In consequence she was tortured, raped and murdered to prevent her from reporting to her parents that she was raped. Because the girl’s parents would bear witness against the perpetrator they too had to be eliminated, and were. This is the most plausible motive for the murders. In the leading case on the relevance of motive for purposes of proving intention or identity Innes CJ held in R v Khumalo and Nkosi 1918 AD 500 at 504:

“The ordinary man does not perpetrate a grave criminal offence without a motive; and although it is not essential, nor always possible, to ascertain what it was, the matter is often of considerable importance. A crime for which no motive likely to affect the person charged can be assigned is difficult to bring home. So that the presence of such a motive is an element in favour of the Crown, and its absence an element in favour of the accused. Now it is seldom that direct evidence on the point, such as would be afforded by the accused's own statement, can be produced. In the majority of cases the probable existence or non-existence of motive must be deduced from external circumstances. And such circumstances may as a general rule be proved if they are relevant - that is to say if they are circumstances from which the presence or absence of the particular motive may be reasonably inferred. Thus, if a husband were charged with the murder of his wife, evidence that he had formed an adulterous connection with another woman would be admissible as showing a possible motive for the crime. On the other hand proof might be properly given of affectionate marital relations in order to negative motive.”

DEFEATING THE COURSE OF JUSTICE: COUNT 5

68. If the minor is guilty on the count of rape and the other three counts of murder and having regard to the evidence adduced, in particular at para 14 (above), paraphrased below, then it follows that he ought to be guilty of defeating the ends of justice. In that:

The police officers and their colleagues at the police station understood the minor to convey to them unambiguously that he was reporting farm murders. The minor caused the police machinery to click into gear and the big guns to be mobilised forthwith. First to be contacted was W/O Mofokeng, the Detective Branch Commander, who had just knocked off duty and was on his way home. He made a U-turn. Then followed Major General De Waal (Ms) who was the officer on duty at a provincial level. Col De Waal, the investigating officer, who features prominently throughout the investigation, was dispatched and took charge of the investigation from the evening of the murders with a large police contingent under him. A helicopter was commissioned which reconnoitred and scoured the skies for suspects. Police stations in the surrounding areas were put on alert.

69. The minor sent the police on a wild goose chase and let them on a merry-go-round. He falsely implicated Mr Kgoronyane and put the spotlight on Mr Deerling who transacted a deal with his father a day before the murder (05/04/2012). The accusation that the intruder-murderer made off with R60 000 – R80 000 perpetuated the lie. The purported robbery was given as part of the reason for the murders. The implication therefore was that because there was no intruder or robber false aspersions were per force cast on the police as suspects in respect of the alleged missing money. However, the evidence has revealed that there is no grain of truth that any money went missing. The recovery of R32 000 and the wallets containing money bears this out.

70. The minor was given the benefit of the doubt from 06 April 2012 until 12 August 2012 when Col De Waal stopped the charade by charging the accused minor with the offences listed in the indictment, after a full, thorough, scientific and fair investigation was carried out. From 12 August 2012 nothing said or done by the minor in respect of the defeating the ends of justice count can be held against him as he was an accused and had the right to remain silent.

71. In S v Pakane and Others 2008 (1) SACR 518 (SCA) the Supreme Court of Appeal observed at 532 a - c (para 34):

“I turn to deal with the second appellant's challenge of his conviction for defeating the ends of justice. This offence consists in unlawfully and intentionally engaging in conduct which defeats the course or administration of justice. In this respect the State relied on the following - the contact shot, the swapping of the R4 rifles, the torn pages of the occurrence book and second appellant's instructions to Ngxumza to rewrite entries without informing a superior officer about the state of the book. State counsel argued that the appellants had fabricated a version for their return to the police station, knew that rifle 295 would be swapped and that documentary evidence linking the second appellant to it would be altered or destroyed with the deliberate intent to defeat the course of justice.”

At 533 c-f [para 38] the Court went on:

“Equally striking is the fact that the torn pages related to fresh events of that very morning. A perusal of the relevant entries, starting from the previous evening, shows that but for the Lang report, it was an uneventful shift. For what conceivable reason then could one remove the missing pages and who else (except someone involved in the contentious shooting incident) in the circumstances would have an interest in those pages? ---. There is no doubt in my mind that [second appellant’s] version in this regard is false. I agree with the conclusion of the court below that he tampered with the occurrence book to remove proof that he had booked out rifle 295, which, very conveniently, was subsequently not sent for a ballistics test. Therefore, his conviction for defeating the course of justice was proper.”

See also Minister of Justice and Constitutional Development & Others v Moleko 2009 (2) SACR 585 (SCA) at paras 21 & 22 where the SCA stated:

“[21] Mr Moleko was charged with defeating or obstructing the course of justice. The essential elements of this crime at common law are described by JRL Milton South African Criminal Law and Procedure vol II Common Law Crimes 3 ed (1996) as follows (p 102):

'Defeating or obstructing the course of justice consists in unlawfully doing an act which is intended to defeat or obstruct and which does defeat or obstruct the due administration of justice.' [Footnote omitted.]

It is immaterial whether the alleged conduct has merely a tendency to defeat or obstruct the course of justice or is capable of defeating or obstructing the course of justice.

[22] Counsel for the appellants pointed out that the actus reus which forms the basis of a charge of defeating or obstructing the course of justice may take a number of different forms, and contended that the unlawful and unprocedural release by a judicial officer of an accused person may fall within the type of conduct which may be characterised as defeating or obstructing the course of justice….”

72. I cannot therefore agree with the submission by (the initial) defence counsel and the concession by the State that the minor’s conduct merely constitutes an attempt to defeat the ends of justice. If the minor’s conduct does not constitute the substantive offence of defeating the ends of justice then this crime may as well be abrogated. A concession erroneously made on facts and/or the law is not binding on a presiding judicial officer. See Matatiele Municipality and Others v President of the RSA and Others 2006 (5) SA 47 (CC) at para 67 the Court held:

“[67] Here, we are concerned with a legal concession. It is trite that this Court is not bound by a legal concession if it considers the concession to be wrong in law. Indeed, in Azanian Peoples Organisation (AZAPO) and Others v President of the Republic of South Africa and Others, this Court firmly rejected the proposition that it is bound by an incorrect legal concession, holding that, ‘if that concession was wrong in law [it], would have no hesitation whatsoever in rejecting it’. Were it to be otherwise, this could lead to an intolerable situation where this Court would be bound by a mistake of law on the part of a litigant. The result would be the certification of law or conduct as consistent with the Constitution when the law or conduct, in fact, is inconsistent with the Constitution. This would be contrary to the provisions of s 2 of the Constitution which provides that the ‘Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid.’”

See also Government of the Republic of South Africa and Others v Von Abo 2011 (5) SA 262 (SCA) paras 18 and 19; and Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A) at 23 F.

73. Having dismissed the minor’s application for the re-opening of the defence case on 18 March 2014 brought by his new legal representative, attorney Mr Riaan Bode of the firm Engelsman Magabane, I gave the following directive:

“5. Counsel for the minor is free to re-argue the entire case, mainly on aspects which he wishes to emphasize or aspecs that may not have been argued before. State counsel may then reply.”

74. Mr Bode, filed comprehensive written submissions (31 pages) which cover large portions of matters covered by the former legal team. I have integrated the submissions of both sets of defence teams without always identifying the source. State counsel also replied more conservatively.

75. One aspect raised by Mr Bode though requires special attention. He questions the propriety of the Investigating Officer Col De Waal in requesting the minor on the same evening of the incident “om sy weergawe aan my voor te hou voor ek vir hom uigevra het.” He then questions the fact that the photo that depics the scratch mark on the minor’s neck was taken; the testing for propellant powder residue (which incidentally was found on the minor’s shorts); the confiscation of the said shorts and the discarded T-shirt; the taking possession of the murder weapons (the firearms); and that the minor’s guardian at the time (Mr Andries Steenkamp) demanded that an attorney be in attendance when the minor’s statement was obtained. Mr Bode concludes this aspect as follows in his written submissions:

“10.4 Die toelaatbaarheid van hierdie getuienis in soverre dit deur die betrokke offisier in die Hof aangebied is en in soverre die Beskuldigde daaromtrent gekruisondervra is, het moontlik sy grondwetlike regte tot `n billike verhoor geskend.”

76. State counsel has countered this argument as follows in his Heads:

“61. Die verrassende submissies ten aansien van die toelaatbaarheid van die getuienis is, met eerbied, sonder substansie.

62. Selfs die verdediging aanvaar dat die polisie bona fide opgetree het. In lig van die feite kan daar ook nie iets anders argumenteer word nie.

Sien paragraaf 10.5 van Beskuldigde se aanvullende hoofde.

63. Hierdie onverwagse argument laat die volgende heeltemal buite rekening;

63.1 Die beskuldigde is na die polisiestasie toe;

63.2 Hy het `n weergawe aan die polisie voorgehou;

63.3 Hy het die hulp van die polisie ingeroep;

63.4 Hy het homself as die enigste oorlewende van `n treurspel aan die polisie voorgestel;

63.5 Hy het homself dus as die enigste en belangrikste getuie aan die polisie voorgehou.

64. Alles wat hierop gevolg het is die noodwendige gevolg van dit wat hy die polisie meegedeel het.”

77. What need to be added is that it was common cause that during that initial interview (not an interrogation) the minor’s then guardian, Mr Andries Steenkamp, was present and suggested the presence of an attorney during the statement-taking. It is common cause that Adv Sharon Erasmus, the minor’s counsel since then (07 April 2012) until she was shown the “trekpas” on 12 December 2013, spoke to Col De Waal and was satisfied that the interview may go ahead as long as it was a witness-statement, and not a warning statement, that was intended to be recorded. The subsequent conversation between lead defence counsel, Adv Coetzee, and Col De Waal did not end that amicably because De Waal stated that he terminated the telephonic conversation as he reckoned that Mr Coetzee is setting unreasonable demands that hamper the proper investigation. Adv Coetzee nevertheless spoke to the minor on the minor’s cellphone and advised him what to do or how to handle the situation. Mr Coetzee later arrived on the farm and was satisfied that nothing untoward to prejudice the minor was done. On the contrary Mr Coetzee did not even cross-examine Col De Waal on this aspect of the evidence. Both the former and current legal teams were satisfied that the minor throughout exculpated himself and there was no prejudice that redounded against the minor out of this part of the investigation. The minor was a witness and not a suspect. Hence no application for a trial-within-a-trial was asked for or held because there was no need. Mr Bode’s reliance on S v Sebejan and Others 1997 (1) SACR 626 (W) was therefore misplaced. The headnote captures it succinctly as follows at 627 a - d:

“As to the question of what constituted a suspect, it was held that a suspect was one about whom there was some apprehension that he or she may be implicated in the offence under investigation and, it could further be, whose version of events was mistrusted or disbelieved. In determining the rights of a suspect it was noted that the Constitution Act was silent with regard to the rights of a suspect who was neither detained nor arrested. Regard was however had to the 1931 Judges' Rules, which although they were only regarded as administrative rules of fairness to be observed by the police, were not completely without effect. According to these rules, non-suspects could be questioned without any cautions or warnings whereas suspects, even in circumstances where answers to questions could establish their innocence, should receive the benefit of a caution or warning. (H)eld that a suspect who became an accused was entitled to fair pre-trial procedures which included the rights under s25(3) of the Constitution

Act accruing to an accused when arrested. (H)eld that the accused was not a suspect at the time that the statement was taken because the statement was taken as a result of what had happened to the accused's husband and because there were no suspects until that evening when statement B was taken, which implicated the accused.” (Emphasis added).

See further S v Orrie 2005 (1) SACR 63 (C) from 67h-70c.

I therefore find that until 12 August 2012 when he was arrested the accused was not regarded or treated as a suspect since the occurrences of 06 April 2012.

78. I have decided to write a separate judgment on the minor’s application to re-open the defence case which I turned down on 18 March 2014 and reserved my reasons. That judgment is fairly lengthy and would have encumbered this judgment unduly. The ruling will be delivered in the motion court when it is ready.

79. All that need to be stated concerning the application to adduce fresh evidence is that it was done for spurious motives. It was a subterfuge to counter the State’s argument delivered on 12 December 2013, which was in any event put to the minor in cross-examination, that the minor’s motive for the killing was to silence the girl from reporting and to eliminate his parents for fear of bearing witness against him.

80. Mr Bode argued at length that the minor accused did not instruct his former legal team to intimate that the minor’s deceased father could have sexually penetrated her on a previous occasion and on or about 06 April 2012. However, the minor refrained or omitted to say so on oath in the application to re-open the defence case. The argument by Mr Bode is therefore baseless.

81. In conclusion: I am satisfied that none other than the minor accused whose identity, for what it is worth, can still not be disclosed, committed all the offences listed in the indictment as the State in fact proved them, not only beyond a reasonable doubt, but beyond any shadow of doubt. To deal with all aspects proved against the minor would amount to an overkill.

The murders were not only pre-meditated but were in fact planned and executed with the direct intent to murder.

82. The minor accused is accordingly found guilty as follows:

1. Count 1: The Rape of his sister (Ms M): Guilty as charged.

2. Count 2: The Murder of his father (Mr D): Guilty as charged.

3. Count 3: The Murder of his mother (Mrs C): Guilty as charged.

4. Count 4: The Murder of his sister (Ms M): Guilty as charged.

5. Count 5: Defeating the ends of justice: Guilty as charged.

F DIALE KGOMO

JUDGE PRESIDENT

Northern Cape Division, Kimberley

On behalf of the State: Adv J J Cloete

Assisted by: Adv Q Hollander

Instructed by: Director Public Prosecutions

On behalf of the Accused: Adv W J Coetzee

Assisted by: Adv S L Erasmus

Instructed by: De Jager Attorneys

Thereafter:

On behalf of the Accused: Mr R Bode (as from 09/12/2013)

Instructed by: Engelsman Magabane Attorneys

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