IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between: 
THE STATE
and

JUDGMENT

The accused is an adult male charged with the following crimes:

(a) First alternative to count 1, sexual violation.
(b) Second alternative to count 1, incitement, to commit a sexual offence.

2. Assault with intent to do grievous bodily harm
3. Murder.

2008, the accused caused the death of Moniba Kruger by slitting her throat with a sharp object. The state further alleged that the murder was planned or premeditated. The accused pleaded not guilty to all counts and did not give any plea-explanation. For purposes of easy reference Porchia Soekers will be referred to as "the complainant" and Moniba Kruger as "the deceased".

She became scared and feared that the accused would hurt her, but refused to pull off her panty. She cried so that other people could hear her    She then heard the toilet door being kicked opened and she saw Igshaan and Mansoer Rosenberg. She got a chance and ran to the Wendy-house in the backyard of the house. The accused chased after her with the panga. Igshaan locked her inside the Wendy-house. When she came out of the bungalow, the police officers were outside. She informed them that the accused wanted to rape her. Accompanied by the deceased, she went to open a case. She described the panga as being sharp and estimated it to be approximately 45 centimetres. Under cross-examination it was put to her that the accused denied having been in the toilet with her and being in possession of a panga.

Charne, his girlfriend, phoned the police, who arrived and found accused still in possession of the panga. Police instructed the accused to put the panga down, but he refused. An officer pinned him down and he was arrested. He said he had a normal relationship with the accused, but there was no communication between them after this incident. According to him, deceased also had a good relationship with the accused. The day the deceased died, he slept the whole day in his bungalow, because he was not working and had used "UK". His mother woke him up at 17:00 and told him that the deceased was lying dead in her room.

Rashaad Kruger junior, also called Bal, is the son of the accused and a brother of the deceased and Igshaan. At about 14:00 on 28 February 2008 he was at home in the company of Mansoer, the complainant, the accused, the deceased, Kayline, Nicole and Shireen. They were all drinking liquor. The accused and Mansoer were the only ones using drugs, loosely termed "buttons". At about 14:30. he took Kayline home. Mansoer also left with them to buy cigarettes, leaving the complainant and the deceased in the house. When he returned home, his father was already taken away by the police.     He only saw the deceased, the complainant and

On 29 March 2008, it was decided that after knocking off from work the following day, he would take the deceased to live with their sister, Fadelah. On 30 March 2008 he went to work at 05:30 in the morning. He came back from work before 12 p.m. and found the front door locked. Shafwaan, who was inside the house, told him that the keys were with the deceased and she had left with Shireen. He went to look for the deceased at Shireen's place, at Linda's place, at Irene's place, lastly, he went to look for her at Kayline's place, but did not find her. He asked Angelo at the day hospital to phone his mother. He informed his mother that he was locked outside and could not get hold of the deceased.   His mother told him to get through the window. He went home and asked Shafwaan, his nephew, who was 13 years old then, to open the window. He and Kayline were lifted through the Vibracrete wall and they got inside the house through the window.

Then   Petula   Petersen,   a   constable   at   Steenberg   Police
Station, came to the accused's home after receiving an attempted rape complaint from the radio. She met the deceased, who informed her that the victim and the accused were downstairs in the backyard. She went there and saw the accused having a panga in his hand. The blade of the panga was plus/minus 32 centimetres and The handle plus/minus 17 centimetres long. The accused, that was standing next to the bungalow, advanced towards her with the panga, forcing her to take out her pistol and cock it. Accused's eyes were big and he was aggressive. She called for help and Constable Lackay came. Lackay wrestled with the accused to the ground and dispossessed him of the panga.

Complainant emerged from the Wendy-house and indicated that the accused is the man who wanted to rape her. Her eyes were swollen from crying and were red. She then informed the accused of the charge of attempted rape, as well as his rights against him. The accused did not say anything. She took him to the police van and transported him to Steenberg Police Station. At the police station she booked the panga in the SAP 13 register. She later took a statement from the deceased, who also came to the police station. She identified the panga in court and it was marked Exhibit 1. She also handed in a rough sketch plan of the scene where the accused was arrested and it was marked Exhibit E.

The following is a summary of evidence relating to a murder charge. On 20 March 2008, Constable Donovan Prtns, an official at Steenberg Police Station went to the accused's house at 27C Walton Road, Retreat. On getting there, Nadia Kruger pointed to the bedroom and also showed him the sliding tower bolt and the padlock that she broke. He went inside the bedroom and saw a body of a female covered in blood. Nadia told him that she is the one who broke the padlock and opened the door, only to find her child, Moniba Kruger, who was 13 years old then, lying dead. He observed the wounds appearing on photos 6 and 7 of Exhibit F from the deceased. He called support service officers and later handed the scene over to them.

Attached to the ring of the bunch of keys was a gold coloured pendant that she get from her workplace arid later gave it to the accused. She said it was her birthday on 28 February 2008 and that on her arrival at home from work, Igshaan told her what the accused did or tried to do to the deceased's friend. The deceased later came from the police station and told her that the accused attempted to rape her friend. The deceased further told her that she was scared because of what the accused did to her friend. According to her, her family had always been closed, but after the incident with the complainant, the family broke up and the relationship between the deceased and the accused changed. The deceased became short tempered with the accused.

Shafwaan, who slept on a mattress in her bedroom, was in pain as he had cut his foot in a trench earlier that day. She gave him Panado. but Shafwaan could not sleep because of the pain. The accused got up from bed and gave him a pill She does not know what pill it was On Thursday, 20 March 2008, she borrowed a sum of R4,00 from the accused before she left for work at six in the morning. She noticed that the deceased was fast asleep on her bed. While she was at work, she phoned her home at about nine in the morning, but no one picked up the phone. She phoned again at about 10:00 and spoke to Shafwaan. She asked for the deceased and Shafwaan told her that she was not in the house. She phoned the accused and asked where the deceased was. The accused told her that the deceased went to her friend in Lavender Hill.

On entering the house, she noticed the two padlocks on the deceased's room. One padlock belonged to the accused and it was locked. The other padlock was bigger and it was used by the deceased and Rashaad junior in their bedroom and it was just hanging and not locked. She noticed a torn sheet, a screwdriver and scissors on her bed. Shafwaan was lying on the mattress next tc her bed and his eyes were swollen. She noticed the red toolbox next to her bed. It was closed, but the padlock was not there. She had seen the toolbox locked with the golden padlock before she left that morning. She used a screwdriver and a hammer and forced open the door to the deceased's bedroom, that is when she found the deceased's body lying on the floor in a pool of blood. She was still dressed in the pyjamas she had on the previous night and her room was untidy with several items scattered on the floor. The scene that confronted her was reflected in photo 2 of Exhibit F.

Maria Magdalene Anthony, Nadia Kruger's sister, said, after the body of Moniba was discovered, she went to Nadia's place with her daughter, Alvinia. She left in the evening and went to sleep at her home. While asleep at home, she heard a knock on the window of her bungalow. She peeped through the window and saw the accused. The accused asked her to open the door as he had a parcel that he wanted to leave with her. so that she could in turn give it to Nadia. She told him that it was late and that he should bring it the following day. She thereafter went back to sleep. At the deceased's funeral the following day, she told Nadia about the accused's visit and also about the parcel

In cross-examination, she was asked to read the statement that she had given to the police. She looked at the statement and repeated everything she had earlier said in her evidence in chief. When she was confronted about including what was not in the statement, that is seeing the accused through the window, she said she could not read the handwriting on the statement and was not reading from the statement, but was actually narrating the story from her memory. The statement of this witness was handed in and marked Exhibit K.

Constable Dibela attended the scene of murder on 20 March 2008. He took statements from Nadia Kruger and later made a report to Warrant Officer Brandt, who had given him instructions to go to the scene. He could not recall what other information he collected at the scene. On 20 March 2008. Warrant Officer Nichol Henry Brandt, who is a warrant officer of the detective branch at Steenberg Police Station, sent Constable Dibela to attend to a scene of crime at 27C Walton Road. Retreat. As a result of a report made to him by Constable Dibela, he conducted patrol duties looking for the suspect around the crime scene at number 27C Walton Road in Retreat. He did not find him and on 21 March 2008 at 18:00. he and Captain Arends went to look for him at number 25 Essenhout Street in Delft, but did not find him.

At Steenberg Police Station he put the keys in a forensic bag with seal number FSC521085 and registered the bunch of keys in SAP 13/450/2008. Accused was handed over to Officer Solomons and then locked up. Because there was a sworn statement that a padlock was broken from the door at the crime scene and a bunch of keys found on the accused, he asked Constable Dibela to accompany him to 27C Walton Street to check if one of the keys from the bunch fitted on the padlock which was broken He and Dibela went to the crime scene where the mother of the deceased handed a padlock, which is Exhibit 2, to Constable Dibela. They took this padlock to the police station where they sealed it with seal number FSC521085 and registered it in SAP 13/50/2008.

David Le Roux van Wyk, a general practitioner and part-time district surgeon, examined the accused on 21 March 2008 at 21:15, after he was brought to him by Inspector Solomons. The accused smelled lightly of liquor, but was not drunk. He asked the accused to take off his clothes before he examined him. He then examined him and compiled a report on form J88. which was admitted as Exhibit J.   He found the following fresh injuries which, according to him, were one to 12 hours old on the accused:
1. On the right eyebrow ridge he had an abrasion which was 6x12 millimetres and as well as a five millimetres laceration which was not deep.
2. The left eye had subconjunctival bleeding.
3. Under the right eye were abrasions.
4. The left shoulder had superficial abrasions

The accused told him that these injuries were inflicted on him by the South African Police. He also found the following older injuries, which were plus/minus 24 hours old, that is:
1. The right upper leg, on the front side, had a three centimetre scratch mark.
2. The left upper leg had a two centimetre scratch on the inside a 2.5 centimetre scratch on the outside.
3. The right upper arm, on the outside, had an eight millimetre, a four centimetre and a 2,5 centimetre scratch marks.

Francois Swart, a sergeant in the South African Police Services attached to the Biology Unit of the Forensic Science Laboratory, then testified that he holds a Bachelor of Science Degree from the University of Stellenbosch and has had in-service training in the presumptive testing of body fluids. He has more than five years experience and he is an assistant forensic analyst at the forensic laboratory. In the course and scope of his duties he received sealed bags containing exhibits relating to the murder of the deceased in this matter.
Among the exhibits was a biood sample of the deceased which he marked Exhibit E48017/08 victim. A control blood sample of the deceased which he marked D48017/08(2) victim and a grey coloured T-shirt that had two possible bloodstains. He cut out the bloodstains and placed them in separate envelopes, each with its own identifying reference number. He returned the exhibits, which were sealed in a docket, to the administrative component where they were taken by Captain Koenze for DNA analysis.

He collected further exhibits relating to a blood sample of the deceased from the forensic laboratory in Woodstock. It was marked Steenberg CAS 446/03/08 and it was sealed with seal number FAO17607. He registered the shirt in the SAP 13 register 525/2008. He received a sealed bag marked FSC462780. Inside the bag was an envelope containing one light blue T-shirt, which was cut out. It was marked Exhibit 4.1. The following clothes were also handed in, a red coloured T-shirt which was marked Exhibit 4.2, black jeans which were marked Exhibit 4.3, a long sleeved black T-shirt which was marked Exhibit 4.4, a grey coloured tracksuit marked Exhibit 4.5
During his investigation duties he checked whether one of the keys from the bunch, that is Exhibit 3. fitted in the padlock He discovered that one of the keys fitted and opened the padlock. He further secured the record of calls pertaining to cellular number 0785229226, which belonged to the accused during that period from MTN Service Provider. He later took a video footage of the accused's home and the surroundings. The said video was viewed in court and the video clip was marked Exhibit 5. He contacted Constable Hill, who apprehended the accused in Delft Police Station. He could not get any positive information regarding the arrest from him, because Hill said he was suffering from loss of memory.

1.	The deceased was certified dead on 20 March 2008 at 27C Walton Road, Retreat
2.	The body of the deceased was received at the Forensic Pathology Laboratory on 20 March 2008 at 22:00.
3.	Rashaad Kruger, the accused, was in possession of a Nokia cell phone during March 2008 till 21 March 2008 with phone number 0785229226.
4.	Andre Baard, a forensic analyst at the Forensic Laboratory in Salt River sealed the blood sample of the deceased WC11/599/2008 with seal number FAO176/07 on 2 April 2008.
5.	On 2 April 2008, Andre Baard handed the blood sample with seal FAO176/07 to Warrant Officer Solomons for DNA analysis.The work telephone number of Nadia Kruger is 0214340841.

That concluded the case for the state.   Rashaad Kruger, the
only witness for the defence, said the following. On 28 February 2008, he found the complainant, Mansoer, Yusiem, the deceased and Rashaad junior drinking liquor at his house. He does not know what happened thereafter, but what he knows is that the detectives came and picked him up. He denied attempting to rape Porchia. He said when the police came to pick him up, he was at his sister's place in Delft. He arrived there on a Thursday. He said he could never cut his child's throat. He denied any knowledge of the clothes that were handed in as exhibits, saying he was wearing a blue tracksuit when he was arrested. He denied knowledge of the keys that were also handed in as exhibits.

On cross-examination, the following was revealed. After finding Rashaad and the others drinking liquor at his house on 28 February, he joined them, but later went to sleep in the bedroom with Nadia. He said he didn't take any liquor nor did he smoke Mandrax, because he liked his Drink-O-Pop cool drink, his sweets and biscuits. He said he would never call and threaten the complainant in the toilet, because the complainant was like a daughter to him. He admitted that on 28 February, Igshaan kicked open the toilet door, while he and the complainant were locked inside. He said the police later came and dived at him. He admitted that a panga was found at the scene by the police and confiscated it. He also admitted that he had a toolbox at home, which was normally kept at his and Nadia's bedroom. He denied that he was the only one who had a key to the padlock of the toolbox. He said the key for that padlock was normally hung on a hook near his bed or in the passage.

She said the deceased's throat was cut open with an Okapi like knife, which was 13 centimetres long and that the knife was later found by Inspector Brand from him. when he searched him. He demonstrated to court how the deceased was cut on the throat. He kept on saying he was arrested for the crimes he committed and had to be punished for his deeds.

1. Rashaad Kruger junior. Igshaan Kruger, are the accused's sons who had a good relationship with their father before 28 February 2008. Kayline Alexander, the girlfriend of Rashaad junior then, also had a normal relationship with the accused The accused took her as his daughter The complainant was known to the accused as she used to come to the accused's house.
2. The accused was at his house at 27C Walton Road. Retreat with Rashaad, Kayline, the deceased and the complainant.
3. Liquor was consumed at the house.
4. The accused and the complainant were inside the toilet after Igshaan kicked the door open.
5. The accused was arrested by the police later that day after a complaint of attempted rape and the police confiscated a weapon, which is a panga. that they found at the premises.

The following facts are in dispute:
1. That the accused consumed liquor with those present at his house on this particular day.
2. And that the accused threatened and locked the complainant in the toilet, placed a panga against her neck and asked her to pull off her panty.

3. That the accused chased the complainant with the panga after she was rescued from the toilet by Igshaan and was also found in possession of the panga when police arrived.

The complainant is a single witness regarding what took place before and during the time she was in the toilet. Section 208 of the Criminal Procedure Act 51 of 1977 provides that an accused may be convicted of any offence on the single evidence of any competent witness. It goes without saying that the single witness must be credible A trial court should, therefore, guard against the dangers inherent in accepting the evidence of a single witness. With this in mind, I evaluate the evidence tendered.

"Her testimony was clear and satisfactory in all material respects "
I find her to be a competent and credible witness for the reasons that will follow hereunder. The fact that Igshaan heard the complainant screaming inside a locked toilet and later saw his father with a panga, confirms that the complainant was locked in that toilet against her will. Igshaan had no reason to say the accused chased the complainant with a panga to the backyard if that was not the case. One will bear in mind that it was never disputed that the accused's family was a close-knit family and that the accused had a good relationship with Igshaan

Throughout the proceedings it was not shown that Igshaan had any motive to lie about his father. Of importance is that the complainant and Ighsaan's versions on the issue of the panga was confirmed by Petersen and Lackay who came to the scene and found the accused in possession of the panga. I accept the version of Igshaan as true. I also accept the versions of Petersen and Lackay as reliable insofar as the fact that the accused was carrying a panga, as well as the distressed condition they found the complainant in at the scene. Igshaan saw the accused placing the panga against the neck of the complainant, but there was no one who heard the accused asking the complainant to pull down her panty.
The accused confirmed the version of the state witnesses that a police officer dived at him when he was next to the Wendy-house. Although he does not say why the police officer dived at him, it is clear from the evidence that it was at the time he was refusing to put the panga down and was challenging Petersen. The accused could not have locked the complainant inside the toilet if he meant good. He also could not have refused to open the toilet door, if he was honestly treating the complainant as his daughter inside the toilet. Moreover, the complainant had no reason to scream for help if the accused was not doing something unusual inside the locked toilet. I, therefore, reject the accused's version and find that he threatened the complainant with a panga and asked her to pull off her panty

The question that follows is whether the accused's actions amount to a crime defined in section 55(a) of the Criminal Law (Sexual Offences & Related Matters Amendment Act 32 of 2007). This section reads as follows:

"Whether X in fact had the intent to do grievous bodily harm is a factual question. Important factors which may indicate that X had such intention are, for example, the degree of violence, the part of the
body aimed at, the persistence of the attack and the

Although Solomons, who took over investigations in the sexual assault charges, could not trace the deceased's statement, it is clear from the evidence that things changed between the deceased and the accused after 28 February 2008. She was no longer the love of her father as the accused put it. The accused also confirmed that the deceased had already packed her bags, preparing to go and stay with her sister on the day of the murder. The attitude of the deceased towards the accused after the incident on the complainant, coupled with the fact that she no longer wanted to be in the same house with the accused, implies strongly that she was willing io testify against him and that the accused could see that clearly.

The accused's evidence has been shown to be lies, improbable and irreconcilable. He changed his version each time he was put in a corner. I fully agree with the counsel for the state that he was an actor of note. He cried for no apparent reason each time the name of the deceased was mentioned. What appeared to be interesting is that he would cry and look towards the bench with no tears in his eyes as if he was looking for sympathy from the court. He denied any knowledge of the crimes in his evidence in chief. He denied being phoned by Nadia on the day of the deceased's death, saying he had left his cellular phone at home.

The accused dropped bombshell when he described how the accused was cut on the throat. His description was consistent with the manner in which Dr Liebenberg said the throat was cut from back to front and from front to back. When he described the type and size of knife used in cutting the deceased's throat, the accused seemed to be having a picture, a clear picture, of what he was talking about. He first denied that the grey T-shirt he was wearing when he was arrested was his, although he was found by Brand wearing it and was locked up still wearing it. This is the same T-shirt he was wearing when he was booked out of the cells by Inspector Solomons and taken to the doctor for examination. It is also the same T-shirt he was wearing when the doctor examined him and found blood spots on. He later, to our surprise, admitted that the T-shirt was his.

He lied to the doctor about the scratches that he had on his face and said they were caused by a four year old sister's child. When he was confronted about this here in court, he denied that he said that to the doctor. What he said, that Sadia informed him on 20 March 2008 at 10:00 that his daughter was dead and he was suspected of killing her is found by this court to be improbable. At 10:00 on 20 March 2008, Sadia could not have known about the deceased's death, because the body of the deceased was only discovered after 17:00 when Nadia broke the key of the padlock.

On the issue of whether the murder was planned/premeditated or not, I am of the view that it was planned for the following reasons. On the day of the murder, the accused waited for Rashaad junior and Nadia to leave the house. He knew that Shafwaan was fast asleep from the sleeping tablets he had taken for pain on his foot. He also knew that Haija was sick and bedridden and would not cause any problem for him. He knew that with her attitude, the deceased was sure to testify against him. He was also aware that the deceased was going to leave the house that particular day and stay with her sister. To him it was a question of now or never. He made sure that there would be no noise coming from the deceased as he was executing his plan, because he covered the deceased's mouth tightly, as Dr Liebenberg indicated from her observations.

He cut the deceased's throat as he demonstrated to the court.

SABA, AJ