SUMMARY of JUDGMENT: S v van Breda
This is an alleged parricide.
The Accused, HENRI CHRISTO VAN BREDA, is indicted before us for the murder of his brother, father and mother, and the attempted murder of his sister. He faces a further charge of defeating or obstructing the administration of justice. The State contends that the deadly assaults upon the victims were committed by the Accused who repeatedly hit them with an axe or a similar sharp object and committed other unknown acts of violence. The last charge relates to the apparently false information given to the police and other related activities in order to mislead them as to the true identity of the perpetrator of these crimes.
The incidents underpinning these charges occurred at 12 Goske Street, De Zalze Estate, Stellenbosch.
The Accused, his parents, MARTIN and TERESA VAN BREDA, and his siblings RUDI and MARLI VAN BREDA resided at the said premises. The Accused was the middle child. I shall refer to the victims by their first names for the purposes of this judgment. It is convenient to do so.
On the morning of 27 January 2015 the emergency services (EMS) were summoned by the Accused to the residence. A true copy of the emergency call made by the Accused at 07h12 was handed up in evidence and played in court.
Upon their arrival on the scene, the police found the Accused at or near the front entrance of the property. He was only wearing a pair of sleeping shorts and socks. Superficial injuries on parts of his body were discernable.
Two of the deceased, MARTIN and RUDI were found inside the bedroom on the first floor. This was the bedroom used by the Accused and RUDI. TERESA and MARLI were found nearby in the doorway or rather the passage area outside the same room. MARLI was still alive, but barely so.
The deceased and MARLI had severe head injuries probably caused by the axe found on the stairway leading up to the first floor. Although MARLI did not succumb to her injuries, the injuries sustained by her are similar to the injuries sustained by the deceased.
These events lead to the case before us.
The Accused pleaded not guilty in respect of all the charges and an extensive written plea explanation was placed before the court.
In the said statement it was, inter alia, alleged that the persons responsible for the attack upon the Van Breda family were unknown intruders, one of whom wore dark clothes, gloves and a balaclava-type mask.
The Accused and the attacker were involved in a physical altercation during which the Accused sustained injuries. The Accused disarmed the attacker, and in pursuit of the fleeing attacker, the Accused fell on the stairs. The Accused got up and followed the attacker to the outside via the kitchen or back door.
The emergency services were not called as the Accused did not have a number for them. Instead he tried to call his girlfriend, Bianca.
Upon re-entering the house, the Accused then lost consciousness on the stairs and is unable to state whether this was due to shock or to the injuries sustained by him or to a combination of both. He was unsure for how long he was unconscious.
In any event, when conscious again, he endeavoured to find the emergency number and lit a cigarette to calm down. Because of his Australian accent and because he stuttered as a child, he spoke slowly and calmly to the emergency operator.
The Legal Issue
It is the State’s contention that the Accused is responsible for the attack on his family and that he subsequently tampered with the crime scene. The State’s case is based on circumstantial evidence. There is no direct evidence implicating the Accused. The State contends that no one else could reasonably possibly have committed the crimes and that the Accused’s version, of intruders committing the crimes, is simply not true.
Defence counsel argued that the circumstantial evidence presented by the State to prove its case against the Accused does not warrant, as the only reasonable inference, that the Accused was the person who attacked his family. It was argued that the circumstantial evidence presented by the State supports the Accused’s, and not the State’s, narrative.
The van Breda Family
Mr Cornelius Andries van Breda, the brother of the deceased MARTIN van Breda, described the van Breda family as a close-knit decent family with no enemies. The Accused testified that the family had no real enemies and he was not aware of anybody who had a grudge against the family.
The children RUDI, the Accused and MARLI were born on 10 July 1992, 01 November 1994 and 12 October 1998 respectively. The family emigrated to Perth, Australia in the beginning of 2006. The Accused matriculated at Scots College in 2012.
MARTIN, TERESA and MARLI van Breda relocated permanently back to South Africa in January 2014. MARTIN had launched a new school project in South Africa called Edugro. They relocated primarily because of the demands of MARTIN’s business and Theresa’s desire to live closer to her family. RUDI and the Accused remained in Australia and studied at the University of Melbourne.
MARLI attended school in Somerset West (upon the family’s return to South Africa). The family moved from Gordon’s bay to De Zalze Estate in March 2014. The Accused terminated his studies in Australia and joined the rest of the family at De Zalze Estate in August 2014.
The members of the van Breda family were described as well-educated, intelligent and well-mannered.
Security and Layout of De Zalze Estate
General Layout and Functionality of the System
The Accused alleged that the van Breda family had been attacked by an intruder during the early morning hours, shortly before 04h24, when he made his first call to his ex-girlfriend Bianca van der Westhuizen.
De Zalze Winelands Estate near Stellenbosch is what is termed a medium security Estate. Ms Marcia Rossouw, who was employed at De Zalze Estate as Security Manager since February 2014, explained the layout of the Estate with reference to the map in Exhibit “P2”. The house at 12 Goske Street is indicated with a red rectangle block on the map. On the right side of the map is the R44, a public road. At the top of the map is the Protea hotel, Kleine Zalze, the Terroir restaurant and the Techno park area; on the left side of the map are surrounding farmlands, an open field, including Spier farm; and at the bottom of the map is the airfield and municipal land. A river runs through the Estate.
Thorburn Security (hereinafter referred to as Thorburn), contracted by the Estate, provided the security personnel who man the entrance gates as well as the guards who patrol the Estate. Thorburn monitored all the electric fence alarms, beams and the camera surveillance system of the Estate. This was done remotely from its control room situated in Parow.
The Estate is protected by an electrified fence around the approximately 7,5 kilometres perimeter of the Estate, a barrier fence, ant-dig at some places, cameras at certain points, patrols by security guards and access gates. Proper access to the Estate can only be gained through three access controlled gates. The unmanned gates were generally kept locked. The river is protected with an electrified fence as well. At the river inlet was a gate and barbed wire stretched across the river.
Mr Jaco Pietersen, the previous Security Manager, confirmed that the Estate had, and still has, more than one phase of security. Thermal cameras were installed during Mr Pietersen’s tenure that could pick up or spot something or somebody twenty (20) metres from the fence. A further phase were the security guards who did patrols. The security guards served as the foot soldiers. Visible patrolling by driving around was also an important deterrent. Mr Pietersen testified that if a camera did not spot a person, the alarm would alert the security personnel of the person’s presence.
When, and if, an alarm was activated by an object or person touching the electric fence, the remote monitoring room in Parow would, upon seeing that an alarm had been activated, send out the shift manager or first responder to that specific area.
It is common cause that the van Breda residence at 12 Goske Street is situated more or less in the middle of the Estate in a fairly built up part of the area, near the end of a cul de sac (see Exhibit “T”). It is the second last house in a cul de sac.
The Court conducted an inspection in loco and recorded the findings with regard to the general layout of the Estate and the house.
Extensive evidence was presented with regard to the security of the Estate and access to it.
The Night of the Murders
Was there a possible breach of security during the night of 26 – 27 January 2015?
Visitors and the Access-Controlled Gates
No unknown visitors went through the access controlled main gate during the night of 26 – 27 January 2015. Nobody signed in at the main gate from 23h57 until 07h05 according to a report, Exhibit “Y”, handed in by Defence counsel. Ms Rossouw verified the report with regard to access cards and the times persons went in and out of the Estate.
CCTV footage of unlogged comings and goings at the Kleine Zalze gate the morning of 27 January 2015 was presented by Defence counsel. A restaurant and a lodge are located at Kleine Zalze at Zone 39 and 40 which is situated quite some distance from the residential area of De Zalze as can be seen on the map, Exhibit “V1” and “W”. Ms Rossouw conceded that a proper record had not been kept at the Kleine Zalze gate.
Neither the security guards, the neighbours, Ms Op’t Hoff or Ms Taljaard, nor the Accused testified about the presence of a suspect motor vehicle in the residential area of De Zalze Estate. The Kleine Zalze gate is situated quite far from 12 Goske Street and there are probably more suitable places for a prospective perpetrator to gain access to the Estate. Furthermore Sergeant Appollis testified that all vehicles entering the Estate had been accounted for although statements of all the drivers had not been taken.
The Integrity of the Perimeter Itself
During the night of 26 – 27 January 2015 between 18h00 and 07h00 the next morning Mr Lorenzo Afrika did five patrol checks and found that everything was in order. He also did three (3) “blood hound” inspections with the last one at 02h50 on 27 January 2015. During the course of the night no alarms were activated and no trespassers/intruders were found or reported on the Estate. If any such event had taken place, the monitor would have been activated and he would have responded. Therefore there was no security breach the night of the murders.
Mr Afrika checked the entire green barrier fence for holes the night of the murders. On 26 January 2015 Mr Edgar Wyngaard reported for duty at approximately 18h00 as his shift started officially at 19h00. His shift ended at 07h00 the next morning. Mr Wyngaard testified that nothing unusual was reported or spotted that particular night, nor on the camera footage afterwards. Nobody complained about strangers or any other undue occurrence. Mr Wyngaard testified that he did not notice any holes that night. There was also no report that Mr Afrika picked up anything at the fence. Mr Wyngaard testified that they patrolled the Estate approximately six (6) to seven (7) times along the road close to the van Breda residence. He did two “blood hound” patrols himself per night but could not remember whether he assisted Mr Afrika with his patrols of the outside perimeter of the Estate that particular night. He testified that the last “blood hound” patrol ended at 02h50.
The Functionality and the Integrity of the Fence
On 27 January 2015 when Mr Wyngaard reported again for night duty, he found nothing wrong with the fence. On 27 January 2015 he went through all the video security footage and inspected the fence and gates physically. Mr Wyngaard testified that it was impossible for any intruder to have gained access to the Estate during the night of the incident.
Both Mr Afrika and Mr Wyngaard were confronted with an alleged alarm that went off at Zone 39 at 01h37 on Tuesday 27 January 2015, and a patrol that was conducted in that area at 01h41 (see paragraph 5.5, page 3, Exhibit “Y”). They denied responding to an alarm, and the possibility that an alarm was activated at 01h37 as suggested by Defence counsel. There seem to be a discrepancy as to which one of the security personnel did the patrol at 01h41. The Court is not persuaded that the patrol was done as a result of a response to an alarm. The Controller, Mr Calvin Vergotine from Thorburn Security, can be seen at his console on a photograph taken at 01h37 on page 3, Exhibit “Y”. According to the report handed in by the Defence, the Controller would have heard the audible alarm and see the zone flashing in red. Ms Rossouw confirmed that there would be a loud sound and popup screen on the monitor when an alarm is activated. It would cause an irritating sound meant to alert the Controller. In the case of “not true” alarms, there would be no signs or lights and the activation would go straight to the history of the computer. The alarm activated on 01h37 was described as a “not true” alarm. It was not the normal activation alarm and it went automatically into the history report of the system. Mr Rossouw testified that in case of “not true” alarms, a responder was not sent out to check. Ms Rossouw testified that the system was not available on the internet for anybody to learn the workings of the system. It was a so-called “stand alone” system.
The murders were probably committed between 04h00 – 04h24 on 27 January 2015. If it was a true alarm, a possible intruder would have wandered around the Estate or hid on the Estate for a few hours before committing the crimes later the morning. No other crimes committed at De Zalze Estate during that particular night, were reported. If a possible intruder entered the Estate at Zone 39 or 40, he or they would have gone past a number of other houses before getting to Goske Street. Such a person also had to leave the Estate again and no other alarms were registered after 03h36 and before 08h53 on 27 January 2015. The last mentioned alarm was not reported as a suspicious alarm and it was probably a deliberate alarm to test the functioning of the fence or for another ordinary purpose.
Immediately after Ms Rossouw learnt about the incident on 27 January 2015, she gave an instruction for the perimeter fence had to be inspected centimetre by centimetre to establish that there was no sign of entry to the Estate. After the incident Ms Rossouw watched the video footage herself, apart from the fence being inspected. Nothing unusual or suspect was noted or reported. She requested the remote monitoring system to check the activation of the alarms and the cameras and furnish her with reports.
On a question during cross-examination whether it was possible for an intruder to dig a hole under the fence and enter the Estate through the hole, Ms Rossouw responded that there were no signs of footprints alongside the fence the morning after the murders. Defence Counsel pointed out that residents were active and could be seen running alongside the fence on CCTV footage on 27 January 2015 at 05h47. Ms Rossouw responded that one could distinguish between footprints right next to the fence and footprints some distance away where the residents were active.
During cross-examination the Accused agreed that it was a fair assessment to make that possible intruders had to go to a lot of trouble to get into the Estate surrounded by an electricfied fence. He conceded that the intruders had to move from the perimeter fence undetected to their house in the central area of the Estate. The intruders managed to find the van Breda house with an open back door, took nothing inside the house, nobody heard them fleeing from the house and they managed to exit the Estate by going over or under the fence without the alarm being triggered.
The Accused could not say how the security was breached. He testified that it was a possibility that someone might have had access to a resident’s key card and so gained access to the Estate to commit these crimes. With that scenario the card must have been given consciously to the intruder, or stolen for that purpose. He then conceded that the story with the card seems an unlikely scenario because his family had no real enemies.
The neighbours of the van Breda family, Ms Stefanie Op’t Hoff and Ms Annalise Taljaard, testified that the Estate was a safe and secure environment to stay in. Ms Op’t Hoff was of the opinion that De Zalze Estate was probably the safest or most secure place in Stellenbosch and testified that she felt very safe living there. Ms Taljaard, testified that she felt comfortable and secure, living in De Zalze Estate. She felt so safe that she left her children at home when she went swimming in the mornings. None of them reported any suspicious persons or incidents in the vicinity of Goske Street the day or night of the murders. The only unusual event were the loud male voices coming from the van Breda home.
The Accused confirmed that he never felt insecure, unsafe or threatened whilst living in the Estate. They slept with open windows without burglar bars and keys in the doors without security gates. The back door was even left unlocked some times.
It was submitted by State counsel that the security measures of the Estate, the location of the property on the Estate and the close proximity of the houses make it highly improbable for any intruder(s) to access the Estate and the property in question, commit these crimes and exit the property and Estate without being detected. Despite lengthy cross-examination, the Defence was unable to suggest or present evidence of a real breach of the security. Considering the probabilities and in the light of what is said here, the Court is in agreement with the State that it is highly unlikely that the security was breached by an intruder from outside De Zalze Estate.
The Emergency Call and the Demeanour of the Accused
In the early morning hours of 27 January 2015 Janine Philander, employed as an operator by the City of Cape Town at the emergency communication centre, received a call from the Accused. The audio recording of the call, Exhibit “JJ”, was played in court. The recording started at 07h12 and ended at 07h37; it lasted 25 minutes. The Accused appeared emotional while the audio recording was played in Court. The Accused confirmed that the sound clips of the emergency call were correct and that the contents of it were what happened during the course of the call.
The Accused testified that he had a speech ‘impediment’ and stuttered. He received speech therapy from grade 4 until grade 10. The Accused said that he panicked, was breathing very fast and lit a cigarette at the kitchen counter to calm himself down while the emergency call was dialling. He smoked three cigarettes in short succession and dropping them to the floor where they burnt out. He said the reason for that was that his hands were shaking so much that the cigarettes just fell out of his hand. In normal circumstances it was not acceptable to smoke inside the house. The Accused was taught the technique to speak slowly and calmly because as soon as he started speaking fast, he would get stuck. When listening to the audio recording, it was quite clear to the Court that the Accused stuttered slightly. Ms Philander conceded that towards the end of the call the Accused appeared to be calmer than he was initially and that it could have been the case because she stayed calm. It is apparent from the recording that it was not necessary for the operator at any specific time to request the Accused to calm down.
Although Ms Philander conceded that the Accused did nothing wrong when making the call, the lack of urgency and the demeanour of the Accused, during a disturbing and unduly long conversation with the emergency services, seemed to be highly unusual for a traumatised victim.
The Accused testified that he decided to contact the emergency services directly to save time and not make use of other obvious options to get help. During cross-examination the Accused was confronted with the fact that he verbalised certain emotions to the Court but it was not evident from the emergency call. The Accused said he did not get angry because he was under the impression that they were having some sort of technical issue. Later he testified that he was trying his best not to reflect his agitation and get as angry over the phone as he should have been. The Accused testified that he did get frustrated with the emergency services when they did not react quickly. He said he did nothing to convey his feelings of frustration to the operator despite being in dire need, he’d rather suppressed those feelings of frustration. He felt that it would only confuse the communication and not help.
The Accused testified that he was aware that it was a very serious situation. During his evidence in chief the Accused testified that at that moment he was still under the impression that both RUDI and MARLI were alive. He heard gurgling sounds from above. Peculiarly enough, the Accused made no mention to Ms Philander that his brother was also alive; he only mentioned his sister being alive. During cross-examination by the State, the Accused was unable to explain why he did not mention that two of his family members were still alive. The Accused conceded that the gurgling sounds could have emanated from MARLI only and not from both RUDI and MARLI. Despite being uncertain in this regard, the Accused stated it as a fact in his plea explanation that he could hear what sounded like RUDI making gurgling sounds in their room.
The Accused stated during cross-examination that he immediately went and phoned the emergency services again (my emphasis) after regaining consciousness. This is simply an incorrect statement. Considering the timeline as set out in Exhibit “UU”, the Accused never phoned the emergency services before he lost consciousness. He did an internet search for an ambulance at 04h27 and attempted to phone the emergency services from his mobile phone for the first time at 07h12.
Dr James Butler, a neurologist, inter alia testified about the Accused’s behaviour on the audio clip of his emergency call, during which he appears “inappropriately calm and lacking in urgency, given the gravity of the circumstances”, and also not knowing about his family’s status. Dr Butler said he suspected the general public who have heard it would be struck by the inappropriateness of the Accused’ behaviour. The witness said it was consistent with the behaviour of someone in a post-ictal state after a seizure.
The audio recording of the emergency call is indeed a silent, unemotional, trustworthy, unbiased and accurate witness to the Accused’s demeanour and seemingly inappropriate lack of emotion after the extremely traumatic events, as argued by the State. Although State counsel conceded that not every person reacts the same in traumatic circumstances, it was argued that the emotional state of the Accused during the call is inconsistent with being a victim of a crime and losing most of his family members. The Accused was calm, fully conscious and able to relay his version of the events to the police at the scene and later at the police station. Dr Michelle van Zyl also described the Accused as confident, not emotional, conversing casually and relaxed with staff when he consulted with her later on 27 January 2015. She noted that he was orientated to person, place and time.
If the Accused’s intention was to get help as quick as possible by speaking to the emergency services directly, it does not explain why he first tried to contact Bianca van der Westhuizen, his girlfriend at the time, at 04h24 before googling the number for the emergency services at 04h27 on 27 January 2015 (see Exhibit “UU”). The Accused confirmed that the landline and mobile phone numbers indicated in Exhibit “UU” belong to him and Bianca and their home landline. He said he accepted that the information downloaded from the mobile phone was correct. Furthermore, the Accused was confronted with the fact that he did not seek help from other obvious sources like neighbours, De Zalze security or the other emergency numbers on the list against the fridge, while on the cordless phone to the emergency services. Instead he called a minor school girl residing in a hostel, several times from his mobile phone. The Accused explained he just wanted to speak to someone and Bianca was pretty much his only friend in South Africa at the time.
During cross-examination the Accused created the impression that he was not aware of the 24 hour emergency numbers on the fridge after staying permanently with his family for approximately five months and also did not see it when he scanned through the numbers. The fridge was close to the kitchen counter and place where Sergeant Kleynhans found three cigarette butts and a packet of cigarettes, as can be seen in Exhibit “A117 – 120, 135, 502 and 503”. The distance from the kitchen counter to the fridge in the kitchen with the paper containing emergency telephone numbers, was 1,53 meters. The Accused’s version in court was that he smoked the cigarettes at the kitchen counter whilst making a call from the landline, the cordless telephone that was lying on the kitchen counter. He testified that if he reconsidered the list while on the phone with Ms Philander, he would probably have ended up seeing the 24 hour emergency numbers. The Accused conceded that he had the opportunity and should have called De Zalze security as well. He also conceded that they presumably would have been able to get the emergency services straight to the Estate. He also did not think of calling the doctor whose emergency number was also on the list. It is unlikely that the Accused was not aware of what emergency numbers or whose numbers were on the list as the occupants of the house and workers were made aware of the numbers.
The Court is cautious not to adopt an armchair approach when evaluating the conduct of the Accused who found himself in a very traumatic situation. Apart from the medical emergency numbers, the numbers of the Control room, the Security manager and four friends were on the fridge list (see Exhibit “D”). In his plea explanation the Accused said that he struggled for a very long time trying to get the operator to send an ambulance. According to the Accused the operator seemed confused and he did not get the quick response that he was expecting. He was trying his best to formulate a plan to get help as soon as possible (see paragraph 45, Exhibit “J”). Yet, the Accused did not try any of the numbers on the fridge from his mobile phone while being on the landline with the emergency services. As stated above, an ambulance could probably have been dispatched much quicker by phoning one of the numbers on the fridge than to google an emergency number followed by a twenty five (25) minute call for help. The very reason for the numbers on the fridge was to use it in case of an emergency and to be at the quick disposal of the person needing it.
It is common cause that the Accused did not attempt to alert the security at De Zalze with regard to the presence of an alleged and seemingly very dangerous intruder at large on the grounds of the Estate. The Court accepts that the wellbeing of the injured would take preference, especially in a traumatised person’s mind, rather than the presence of a dangerous assailant. It is common cause that the Accused also did not seek help from the security officers to obtain medical assistance as such.
In his evidence in chief the Accused testified that he shouted for help in one way or another when he saw the assailant attacking his brother. He said he could not remember what he said or if he said anything but he made some sort of noise. The Accused testified that he did not call for help from his neighbours when he went out of the back door after the attack. He said that there was no particular reason why he did not call for help. With the benefit of hindsight, that is something he should have done. The Accused confirmed that the houses on the estate are close to each other. The Accused conceded that Ms Opt’ Hoff would have come and helped, but he thought she could not do anything. He was of the opinion if it was not a medical professional, they would not been able to help.
The Accused furnished different versions about the presence of a person that he encountered outside:
In his plea explanation the Accused said he went outside via the front door while still on the phone to the emergency operator. When he was outside, he noticed someone. As far as the Accused could recall, he requested this person to get help. The Accused could not recall who this person was (see paragraph 47 and 48, Exhibit “J”).
His statement to the police is silent in this regard; the Accused merely stated that he went outside for a bit via the front door. Then he went back inside and waited for the emergency services in the kitchen, having some cigarettes while waiting (see paragraph 10, Exhibit “SS”).
During cross- examination the Accused testified that the processes of the trial jogged a lot of his memory and that there is a statement in the police docket of a lady that was outside their house. He could not recall whether he mentioned it to the police or not. Surprisingly he also testified that it did not seem relevant information to him. Such a person could possibly have assisted the police with information on the alleged intruders; the Accused was not aware of what she had seen or known about the incident/intruders. When probed again about his failure to mention it to the police, the Accused responded that he was fairly sure that he did mention it to the police but that they just did not include it in his statement. He then testified that he did not deem it necessary to point it out to the police that he sought help from a lady on the estate and that the police had to find her. Both scenarios as stated by the Accused can simply not be true; he either told the police about the lady or he did not deem it necessary to mention his encounter with the lady.
In summary the State argued that conduct of the Accused after the attack on his family is inexplicable.
The internet search for emergency services whilst there was no need for it in the light of the list mounted on the fridge for emergency purposes;
Not seeking assistance from neighbours living in close proximity;
The failure to attempt to make use of the easily accessible security and emergency services available to the residents of the Estate;
The inability of the Accused to explain sensibly why he opted to call Bianca, a minor school girl living in a hostel, instead of other people who could render assistance; and
His failure to attempt to assist his family medically or comfort them in their dying hour. Instead he smoked three cigarettes.
The failure to at least warn his mother and sister about the intruder in the boys’ room after the attack on RUDI and his father, can be added to the State’s submissions.
The Time Period between the Incident and Attempts to Obtain Assistance
On the Accused version the attack happened not long before 04h24 the morning of 27 January 2015. Ms Op’t Hoff testified that she heard loud male voices with an aggressive undertone from the van Breda residence the night of the murders from 22h00 until 00h10. The sound of the monitor for her son woke her up at 04h00. She found it strange that both her sons were awake at 04h00 that morning as her eldest son never woke up at night. The windows of the children’s room opened towards the van Breda residence. The Accused attempted to call Bianca immediately after the attack when he went out at the back door at 04h24 on 27 January 2015.
Taking into consideration the testimony of Ms Op’t Hoff, the incident probably took place at approximately 04h00 to 04h24 on 27 January 2015. The Accused attempted to contact the emergency services for help at 07h12 for the first time, in other words approximately two hours 48 minutes later. The question is what transpired during that period of time and the significance thereof, if any.
Loss of Consciousness
The Accused claimed that he lost his footing and had a severe fall during pursuit of the attacker. He said that he got up again and only lost consciousness later as he moved past the middle landing, ascending the stairs, after having tried to google the emergency number on his phone. The Accused could not explain why he wanted to go upstairs again after returning from the back door. He was unsure whether he lost consciousness due to shock seeing his mother and MARLI, or to the injuries sustained when he fell down the stairs, or a combination of both (see also paragraph 37 and 39, Exhibit “J” and paragraph 8 and 9, Exhibit “SS”). He allegedly lost consciousness or blacked out for approximately two hours and 48 minutes. The Accused testified that he was initially very, and even completely, disorientated when he regained consciousness. He was confused for a while before he stood up from the stairs. He testified that when he saw MARLI, he sort of snapped back into consciousness.
Examinations by General Practitioners and the Possibilty of Concussion
Dr Lizette Albertse, a District Surgeon from Stellenbosch, testified that she did not get a clinical picture of concussion when she examined the Accused later that day at about 10h30. However, she did not perform further tests on the Accused in this regard. Dr Albertse testified that the knob on his forehead could have been caused by blunt force trauma like a fall or an assault.
Dr Albertse testified that a person would not be disorientated for a long time in case of a light bump against the head. In case of a more serious injury, a person would be disorientated for a longer period and the recovery time would be longer. Dr Albertse testified that a person who suffered from concussion would not necessarily be unconscious, but the person’s reactions would be delayed.
During the first visit to Dr Michelle van Zyl at Vergelegen Mediclinic, the Accused was fully orientated. The witness had a good and proper conversation with the Accused. When the Accused returned for the second time accompanied by the police, he was still a hundred percent orientated.
The Accused was orientated to person, place and time. During the second visit the Accused answered specific questions coherently. With reference to the injury against his forehead, Dr van Zyl testified that there were no signs of concussion or brain injuries and the tests done by her excluded the possibility of concussion.
The discolouration of the eyes could have been as a result of the bump/injury to the head. Adv Botha asked whether it would be possible that the blood could flow from one eye to the other if a person had laid flat on his right side. Dr van Zyl responded not likely but it was not impossible.
Comment on the Period of Unconsciousness and Brain Injury by a Specialist Forensic Pathologist, Dr Tiemensma
Dr Marianne Tiemensma, is a medical specialist and at the time of her testimony was employed at the Clinical Forensic Unit at Victoria Hospital, Wynberg; she has emigrated since testifying. Apart from forensic pathology, she also practiced clinical science.
Dr Tiemensma testified that the swelling above the left eye and the bruise under the left eye of the Accused, were in keeping with blunt force injuries. The skin overlying these wounds was intact. The wounds to the head, swelling and bruise on the eye, could be caused by a blow to the face or a fall. On a question whether the injuries would be consistent with a fall on the stairs as the Accused allegedly blacked out, Dr Tiemensma said the Accused could have fallen on the stairs because the back and head injuries were consistent with a fall. She testified that there seemed to be minimal bleeding from the wounds; a tiny amount of blood was not enough to go into shock as a result of blood loss. Therefore she was of the opinion that the Accused would not have fainted due to blood loss. However, he could have fainted because of shock. Dr Tiemensma said if a person had fainted because of a medical reason, his unconsciousness would have continued for some time. In case of shock, a person would recover quickly. She did not expect a person to be out for hours. Bruising and injury might have caused a mild concussion but she said Dr Albertse did not mention anything about disorientation.
Dr Tiemensma testified that there were at least two causes for loss of consciousness; one was an emotional shock or trauma, the other was a medical reason. The witness explained that fainting was short term with a brief loss of consciousness. Emotional shock, for instance when a person saw blood, would have symptoms like stress, light-headedness, fast heartbeat, resulting in a person passing out and losing consciousness. The average duration is a couple of seconds to one minute at most. Low blood pressure increases once you fall to the ground. A person did not need medical help to recover. The second type was a form of shock because of blood loss or a bump to the head. The rate at which a person lost consciousness depended on the amount of blood lost. If a person lost less than 500 ml of blood, the person could tolerate that and not lose consciousness. Medical correction was necessary if a person experienced fifteen (15) – thirty (30) percent blood loss; such a person would need fluid replacement. Adv Botha indicated that it was not the defence case that the Accused lost consciousness due to blood loss. He indicated it was the defence case that the Accused sustained a concussion, not a brain injury.
Dr Tiemensma conceded that a neurologist would be in a better position to comment on concussion but said that she often dealt with head injuries sustained by patients and with concussions. Dr Tiemensma said the bump to the Accused left forehead and the discolouration could have resulted in concussion. Defence counsel put it to the witness that the spelling of emergency services on the phone was distorted. She replied if the Accused was able to Google, he was not that confused. He knew what he was doing when he googled emergency services.
Possible Reasons Advanced by a Neurosurgeon for the Loss of Consciousness and the Period, Dr Du Trevou
Defence witness Dr Michael Du Trevou is a semi-retired Specialist neurosurgeon in private practice since March 1993.
Regarding the version of the Accused and the loss of consciousness due to shock or his injuries (see paragraph 37, Exhibit “J”), the witness testified that all retrograde and post traumatic amnesia was a feature of traumatic brain injuries, including concussion. It could last minutes to days depending on the severity of the impact. During that time normal physical activity (for example playing rugby) was possible but the person might have absolutely no recollection of those activities. That loss of memory was usually permanent. To determine how to make a finding, Dr Du Trevou said concussion was a temporary alteration of functioning. Symptoms of headaches and nausea would be indicative of the condition. Primarily one looked at the history of the patient. The neurological examination of the patient was almost always normal.
Any episode of loss of consciousness lasting two (2) hours and forty (40) minutes following a head injury was an indication of a mild to moderately severe traumatic brain injury. The witness said he doubted however that this kind of injury that could not be picked up on an MRI scan would have resulted in retrograde amnesia (which was a loss of recall of events before the insult) as it was an indicator of severe or a more severe brain injury. It was not possible to determine, ex post facto, whether the Accused had lost consciousness or whether he merely lost recall of the incident.
Most importantly, Dr Du Trevou testified that he did not examine the Accused and rightfully conceded that he was asked to comment blindly on a memory loss and loss of consciousness. Dr Du Trevou was asked to comment on whether the Accused could have had a 2 hour 40 minutes post-traumatic amnesia spell. The witness responded that it was a common scenario to lose consciousness but said that he needed more information to determine the length of post traumatic amnesia.
Dr Du Trevou conceded that history was very important to the concept of diagnostic medicine to eliminate possibilities to get to the cause of a problem. There are many causes for loss of consciousness.
The Loss of Consciousness and the Significance of the Blood Flow Patterns
Captain Marius Joubert has 27 years’ experience in the SA Police Service. He is currently stationed at the Forensic Science Laboratory in Plattekloof as a Bloodstain Pattern Analyst and Forensic Crime Scene Expert. His qualifications and experience are stated in paragraph 2 – 4, Exhibit “DDD1”. He commented in blood flow patterns on the body of the Accused and a possible fall, which could be related to the issue of concussion, unconsciousness and the approximately two hours forty minutes time line.
The Accused testified that in pursuit of the fleeing attacker, he lost his footing and fell down the stairs. He landed on his back near the bottom of the top half of the stairs. During cross-examination the Accused said he fell as he was throwing the axe after the attacker. He explained how the actual fall happened and, whether he was falling backwards or forwards, he ended up on his back. He could not recall rolling forward but if he had tumbled down the stairs, it could have only been one forward roll, or alternatively he had slid onto his back and down the stairs.
Captain Joubert was of the opinion that the flow patterns on the upper body of the Accused at point “CS13”, photographs 73 – 75, Annexure L, Exhibit “DDD2”, suggested the Accused’s torso was erect when the flow pattern was created, with insignificant movement of the upper body before the bloodstain pattern dried. A slight deviation of the blood flow occurred just above the left nipple and it was caused by the pooling of blood at the bottom of the flow pattern; the blood was pushed to one side depending on the contours of the skin.
Captain Joubert accordingly confirmed that the flow pattern originated from one superficial stab wound sustained by the Accused on his left upper torso and the cut wounds on his forearm did not indicate deviation and therefore insignificant movement (see paragraph 18.1 and 18.2, Exhibit “DDD2”).
Reason for the Loss of Consciousness and Period Advanced by a Neurosurgeon, Dr Butler
The Accused was of the view that he possibly passed out because of the shock seeing MARLI and his mother at the top landing or from the fall down the stairs earlier. The Accused confirmed that he had never before suffered such a random loss of consciousness for more than two and a half hours. He confirmed that he did not consult any doctor regarding his loss of consciousness for that long a period. He consulted with Dr James Butler after the conclusion of his evidence and when his girlfriend’s father, Dr Janse van Rensburg, arranged for him to consult with Dr Butler on 09 November 2017. Dr Butler was approached as a result of an incident that occurred on 08 November 2017 where the Accused lost his memory without warning and inter alia his arms and legs were shaking for approximately one minute.
Dr Butler is a neurologist with a private practice at the Constantia Medi-Clinic since 1998 to date. He is also a part-time consultant neurologist at Tygerberg hospital and the University of Stellenbosch as well as at the Department of Neurology, Groote Schuur hospital and UCT.
Dr Butler testified that the diagnostic process starts with pre-test probabilities which could change once seeing and examining a patient. This comment by the witness is significant in the Court’s view as will be pointed out later. Dr Butler testified there were three possible diagnoses:
(i) Psychogenic non-epileptic seizures: the loss of blood to the brain causes loss of consciousness. Seizures are developed or memory loss occurs related to previous emotionally traumatic events. Experiencing emotional trauma is embedded in memory and parts of the brain. The individual experiences emotional trauma, it is buried in the brain and the brain converts it into neurological processes, like seizures. Dr Butler explained it is a subconscious process resulting in psychogenic non-epileptic seizures. The loss of blood to the brain causes loss of consciousness;
(ii) An epileptic seizure; or
(iii) Malingering which is a deliberate conscious attempt to fabricate a medical condition. It can be described as a fabrication of symptoms of mental or physical disorders.
The history of the Accused’s problem was obtained from the Accused and his girlfriend who was present during the consultation. Dr Butler said she was present at the consultation because he needed an independent account of what happened after the patient had a blackout or lost consciousness. They need as many people as possible to give a collateral history. The witness said he was aware that the girlfriend could be part of the malingering. History taking is obtaining spontaneous history and systematic interrogation. The purpose of the systematic process was to establish pre-existing symptoms and individualised symptoms. The Accused had no family history of seizures, no childhood seizures, and no injuries or trauma to the brain or infections in the brain.
The Accused and his girlfriend described two events or episodes when the Accused became abruptly amnesic in approximately February 2016 and on 08 November 2017. No history of incontinence of urine or laceration of the tongue was present in any of the instances. With regard to the incident in February 2016, the Accused consumed at least six glasses of wine and apparently did not have a lot of sleep the night before. The Accused also reported intermittent shivers of his whole body while completely awake and dated these shivers to the early part of 2015.
There are a myriad of symptoms, of which only two are indicative of generalised seizures and all the others are indicative of focal epilepsy. The two symptoms for generalised seizures are brief absences, which the Accused denied the presence of, and a funny twitch or jerk. According to Dr Butler the only symptom the Accused confirmed, were jerks. Dr Butler testified that many people do not see it as seizures. Persons could live their lives experiencing these jerks without it affecting their daily functions. When examining the subsequent EEG reports and seeing the abnormalities, Dr Butler was confident that the Accused had epilepsy. The abnormalities found could be seen on the EEG on page 38, Exhibit “GGG”, a 10 second excerpt from a 24-hour recording, and which is also discussed on page 32 of his report, Exhibit “GGG”. The spikes were an indication of generalised epilepsy or seizures. A video clip of a thumb movement by the Accused was handed in as Exhibit “GGG1” and the other video with a bigger movement by the Accused, as Exhibit “GGG2”. The witness diagnosed the Accused with Juvenile Myoclonic Epilepsy (JME). JME starts in the teenage years or twenties as the age of onset, and sometimes even in a person’s thirties. People could suffer from JME and experience a generalized tonic-clonic epileptic seizure (also known as a “grand mal” seizure or a fit). Dr Butler testified that he was as certain of his diagnosis as he has ever been of anyone with an epilepsy condition.
The Court accepts that the Accused indeed suffered from a seizure in November 2017 and it is not necessary to go into the detail of the evidence in this regard. In November 2017 Dr Butler not only consulted with the Accused, he also did tests before making the diagnosis. The only other source of information about the episode in approximately February 2016, is the girlfriend of the Accused. She did not testify and therefore the Court is not in a position to evaluate the independence and reliability of her version of the history. The Accused himself did not testify about the circumstances pertaining to the incident in February 2016. Even if he did not remember much about it, his girlfriend surely would have alerted him to it. Therefore the Court makes no finding in this regard. The fact is that Dr Butler did not examine the Accused or do tests on him in February 2016. Dr Butler testified that it is highly likely that the Accused had a generalised tonic-clonic seizure in February 2016. He conceded that he will only use the word ‘definite’ when he has a video EEG running on somebody. The Court will come back to the relevance of this issue.
During the cross-examination of Dr Tiemensma, it was put to the witness that the Accused would say that he was certain that the paramedics did not clean his wound as the person who took the photo wanted to document his wounds as it was at the time. Dr Butler stated in paragraph 25, Exhibit “GGG”, that the Accused had no recall of some of the questions put to him after the incident and was told that he did not answer some of the questions. Dr Butler could not say by whom the questions were put to the Accused. None of the police witnesses testified that the Accused did not answer their questions and no such allegations were made during cross-examination of the State witnesses. The Accused even gave an account of the events to Captain Steyn at the crime scene. The Accused gave a detailed account at the police station and in court of the sequence of events after he had woken up until the arrival of the police and he had a coherent conversation with EMS and Captain Steyn. On behalf of the Accused it was put to Sergeant Kleynhans that the Accused put his shoes at the bottom of the stairs before arrival of the police. Even more telling was the statement put by Adv Botha to Sergeant Kleynhans that the Accused will say that the piece of cement from the floor as one entered the front door, was not chipped out from the floor until he left the scene. This statement is indicative of acute awareness of one’s surroundings. The Accused remembered observing a blood mark when he got up after regaining consciousness.
According to Dr Butler the Accused remembered “bits of the interrogation” at about midday. From his testimony it was clear to the Court that the Accused contested the contents of his comprehensive statement to the police (Exhibit “SS”) taken the same day, being fairly certain of the events that transpired at the police station.
The Accused had a bump against his head and discolouration of the eyes after the incident (see Exhibit “OO”). Dr Butler testified that in this instance there are no other possible causes of amnesia. The Accused was perfectly lucid while he walked up the stairs immediately prior to becoming amnesic. His vivid recall of certain moments is evidence of relative preservation of his brain’s functioning, including memory, in the minutes leading up to his amnesia. The lack of retrograde amnesia is a hallmark of an epileptic seizure. Patients with moderate and severe traumatic brain injuries frequently have varying durations of retrograde amnesia. Dr Butler concluded that an epileptic seizure represents the only plausible explanation for the abrupt onset of amnesia, without premonitory symptoms.
The witness was of the opinion that the corroborative evidence suggests that the Accused blacked out for a period of 02 hours and 40 minutes before he woke up in exactly the same place where he became amnesic, lying face down on the stairs. According to the Accused it was dark when he became amnesic and light when he awoke, indicating a long period of amnesia consistent with independent evidence. In paragraph 38 of his report, Exhibit “GGG”, Dr Butler listed possible causes for this. He testified that a traumatic brain injury can readily cause unconsciousness for the entire period of 02 hours and 40 minutes of lying in exactly the same place, and not simply being amnesic. In the event of a brain injury, the period of loss of consciousness would indicate a moderate diffuse traumatic brain injury. A full neurological recovery over hours, characterised by amnesia and immobility or very little movement for 02 hours and 40 minutes, is highly unlikely. There is confirmation in literature that a “grand mal” seizure can last 02 hours and 40 minutes or longer. Most last a few minutes. It is impossible to say how long the seizure lasted; it might have been a three minute seizure, followed by a post-ictal state. Lying in the same place, the level of consciousness is depressed and the whole brain is not working. When a seizure lasts a few minutes, then the brain cells recover and the post seizure state can last hours or days. The brain does not work properly during that period. One cannot say whether the Accused had a three minute seizure or an hours’ long seizure with amnesia.
The witness disagreed with Dr Du Trevou, the other Defence witness that the Accused lost consciousness possibly because of a head injury, a syncope or a combination. Therefore contradictory evidence by two expert witnesses on the same topic was presented during the Defence case, although the Courts bears in mind that Dr Du Trevou’s opinion was based on theory alone. However, Adv Botha indicated during the cross-examination of Dr Tiemensma that it was the Defence’s case that the Accused lost consciousness as a result of concussion. Dr Butler, like Dr Du Trevou, did not examine or consult with the Accused at the time of the incident. They had to rely on photographs of the injuries of the Accused like all the other medical expert witnesses, except for Dr Albertse and Dr van Zyl.
Dr Butler said no other medical cause for lying in the same position like this, is apparent. The Accused’s failure to move is indicative of dysfunction in the motor systems of the brain, which are represented in the frontal lobes, while amnesia is indicative of dysfunction in the temporal lobes. Lying in the same position/place can only be explained by diffuse brain dysfunction (a depressed level of consciousness) or by fabricating the history. Lying in a relatively immobile, amnesic state in exactly the same place for a few hours, after an abrupt onset of amnesia, is typical of an epileptic seizure. There are no other diagnostic possibilities, other than malingering which can explain the time period. Abruptness of onset of amnesia can only be caused by a seizure if one accepted the correctness of the facts of the black out.
Dr Butler testified that incontinence is of profound significance in this case despite the traumatic background. Dr Butler said his conclusion was not based on the incontinence only, but also on the neglect and amnesia. Dr Butler fully agreed that there are other conditions and reasons that can cause incontinence.
The witness agreed that only the Accused could say where what happened and where and when the seizure occurred, the witness could not scientifically determine that. The witness could also not with scientific certainty say how long the seizure lasted, but was only inferring it. In justification of his opinion that the Accused was not hit on the head, Dr Butler explained that the Accused was perfectly lucid immediately prior to becoming amnesic, while he walked up the stairs. The Accused’s vivid recall of certain moments is evidence of relative preservation of his brain’s functioning, including memory, in the minutes leading up to his amnesia. Adv Galloway asked whether given the facts and circumstances, there is a possibility that the Accused committed the murders, done things and then had the seizure. Dr Butler replied that the answer is emphatically yes. However, in that instance Dr Butler said whether the Accused was lucid or not amounts to speculation.
Dr Butler testified that it is more probable that the self-inflicted injuries, if such, would have occurred after the murders, but before the seizure. Dr Butler also agreed that the Accused had to think about the circumstances, made a decision and executed it. Adv Galloway asked whether the Accused would have been able to inflict injuries, being self-inflicted according to two doctors, in a post-ictal state. Dr Butler again confirmed that it was much more likely that the injuries were inflicted in the pre-ictal stage before the seizure, when the brain was working well.
The witness conceded that the best time to make a diagnosis is at the time of the incident or occurrence but said it is not always possible. It was pointed out that his diagnosis comes two and a half years later and that it makes his diagnosis complicated. Dr Butler responded that he had an independent way of verifying his diagnosis. Dr Butler testified that he cannot see on an EEG what happened in 2015 and that his diagnosis was simply based on history. He testified that the diagnostic process starts with pre-test probabilities which could change once he saw and examined the patient.
For the Court to accept Dr Butler’s evidence, the Court, at the very least, has to accept the version of the Accused, that he wet his pants as a result of the seizure and that he suffered from amnesia for a prolonged period after the seizure. The Court is of opinion that Dr Butler’s backdated diagnosis pertaining to the night of the murders is a conclusion with, perhaps, exaggerated inferences as it is based on information that is incomplete, not necessarily reliable and it is also not corroborated by independent sources or objective evidence like medical tests. According to the witness himself accurate diagnosis needs careful history and examination, as per standard clinical practice although in this instance he was prepared to make a diagnosis with some certainty without an examination or consultation with the patient in 2015.
Even if the Court accepted Dr Butler’s view that is was likely that the Accused suffered a “grand mal” seizure on the night of the murders, no evidence exists that it had any bearing on what transpired prior to it, his actions and decision making before the seizure. Therefore it would have had no bearing on the commission of the murders, if the Court finds the Accused to be responsible for the crimes. In that instance, it could at most explain the inappropriate behaviour of the Accused after the murders.
The Scene of the Crime and Demeanour of the Accused
On 27 January 2015 Sergeant Adriaan Kleynhans, stationed at Stellenbosch police station, and a colleague were busy with patrols when they received a complaint from the Radio Control room and attended the scene at 12 Goske Street, De Zalze Estate. According to CCTV footage shown in court, the police arrived at the contractors’ gate of the Estate at 07h40:42 and went through the main gate at 07h41:16. With the assistance of a security guard, it took them less than a minute to get from the main gate of the Estate to Goske Street.
Upon arrival Sergeant Kleynhans observed that the front door of the house was slightly open. He approached the house with his firearm in his hand. It was pointed to the ground. The Accused came out of the front door of the house wearing grey sleeping shorts and white socks. The Accused had minor injuries and dry blood on his body. Blood spatters could be seen on the sleeping shorts of the Accused and his boxer shorts in Exhibit “C4″(see also Exhibit “DDD1, Annexure C, photographs 5, 9 and 170). The Accused appeared to be nervous, very emotional, scared, panic-stricken and trembled slightly. He also appeared to be traumatised. He did not cry and was not tearful. The witness testified that he was sympathetic towards the Accused and that he treated him as a victim. It would have been surprising if the Accused was not traumatised or affected by the brutal events, whether he was a victim or the perpetrator.
The Accused said that his family had been attacked with an axe and requested Sergeant Kleynhans to check on them. The Accused testified that Sergeant Kleynhans instructed his partner to sit him down at the front door. One of the officers put Sasha the house dog, on the Accused’s lap. The Accused sat there for quite a while and was then taken to the ambulance where a patch was put on his stab wound and pictures were taken. The police took his grey sleeping pants and white socks that he was wearing, leaving the Accused dressed only in boxer shorts.
Sergeant Kleynhans smelled alcohol on the breath of the Accused. He testified that he encountered persons under the influence of alcohol or that had consumed alcohol on a daily basis throughout the years. Sergeant Kleynhans did not communicate further with the Accused and the Accused did not enter the house again. The witness was challenged by Defence counsel with the fact that Dr Albertse did not find any clinical signs of alcohol or drugs on the Accused. The result of a blood sample taken from the Accused by Dr van Zyl the same day of the incident, obtained the following result: “No drugs could be detected in the blood specimen”. On his own version the Accused, had a beer before seeing Dr van Zyl and the family had a bottle of wine the previous night. According to his statement to the police, Exhibit “SS”, the Accused consumed other drinks as well the previous night. There is a discrepancy in the evidence of the Accused whether he denied having the other drinks or whether he could not remember having it. The precise amount of liquor consumed during the relevant period is not of much significance in this case, save to say that the Accused probably did smell of alcohol.
Experienced members of the SA Police Services testified that the crime scene was not consistent with a house robbery or a burglary.
An open handbag was standing on the dining room table and there was an open laptop bag in the study (see Exhibit “A30, 38 and 98”). The Accused agreed that nothing appears to be missing from the handbag. The cupboard doors in the study were open but the contents of the cupboard were neat (see Exhibit “A102”).
During cross-examination of Sergeant Kleynhans and Captain Steyn it was implied by Defence counsel that a balaclava gang was involved in the commission of the crimes as such a gang was operating in the Stellenbosch area. Captain Steyn was part of a task team established as a project by the Provincial office to investigate a spate of house robberies by the balaclava gang. The task team investigated house robberies in the Stellenbosch and Helderberg Districts and covered fairly vast areas.
They were called out when they received a description of suspects wearing balaclavas, communicating in a foreign language and involved a group of four suspects with a small person in charge of the group. In the current matter the Accused initially alleged that the intruders communicated in Afrikaans but later said they could have communicated in English; he only assumed they spoke Afrikaans because of the harsh tones. During the Court proceedings it was evident that the Accused is quite familiar with the Afrikaans language.
The balaclava gang targeted isolated or free standing houses, for example farms in the abovementioned districts. The balaclava gang only once targeted a house in a populated area, situated some distance from the other houses. The house at 12 Goske Street was almost in the middle of the estate and there were houses in close proximity and all around 12 Goske Street. It was a fairly built up area.
The Accused conceded that it was strange that nothing valuable was taken on the way out by the intruders, but said that he had interrupted them. The Accused initially agreed that there were no signs of interruption but tailored his answer after an objection by Adv Botha saying that the cupboard doors and drawers in the study and kitchen were open. The Accused conceded that the study cupboards and drawers were not in disarray. There was also no stuff packed up or stacked up somewhere in the house near an exit or entrance to the house. The Accused confirmed that nothing was missing from the house as far as he was aware. He did not notice anything that could be ascribed to the intruders being downstairs and conceded that the house did not look burglarised.
Sergeant Kleynhans testified that the valuables were mainly on the ground floor of the house and that the attack took place on the first floor, therefore an intruder had ample time to remove the items on the ground floor. For an intruder to kill the three victims, injure a fourth victim seriously and have a physical altercation with the Accused, must have taken some time. If the intention of the perpetrator(s) was to steal, one would have expected them to remove the numerous valuables from the ground floor without disturbing the assumingly sleeping or oblivious occupants on the first floor.
It is nonsensical that an intruder with the intention to steal, would go upstairs and started attacking a member of the household in his bed with an axe, with the risk of alerting the other occupants of the house of his/their presence. During cross-examination the Accused conceded that had the initial attack on RUDI not taken place, the intruders could have cleaned out the house and gone away quietly.
Cornelius van Breda had no knowledge of the personal items belonging to the victims, but testified that no report was made to him that anything was missing from the house. They went through the entire house and according to Mr van Breda’s observation nothing in the house was tampered with or missing. The Accused confirmed that nothing was missing from the house as far as he was aware.
Visits to Medical Practitioners and the Demeanour of the Accused
The police took the Accused from the crime scene to the District Surgeon in Stellenbosch. The Accused confirmed that he was taken for medical attention by the police. On 27 January 2015 at about 10h30 Dr Albertse examined the Accused as a victim and recorded the injuries sustained by the Accused on a J88 form, Exhibit “LL”. She took a buccal swab from the Accused for DNA analysis and nail scrapings or swabs from his hands as admitted in Exhibit “K”. Dr Albertse could not find any clinical signs of alcohol or drugs. The emotional status of the Accused during the examination was recorded as very quiet. Dr Albertse recorded the length of the Accused as 1,84m, which is relatively tall. He weighed 93,5 kg at the time and had a normal build.
Dr Michelle van Zyl, a General Practitioner and a Senior Medical Attendant overseeing the Casualty department of the Vergelegen mediclinic in Somerset West at the time, was on duty at the mediclinic when she attended to the Accused later that evening. She saw the Accused twice on 27 January 2015 at 20h25 and 21h45 respectively.
When she saw the Accused for the first time at 20h25, the Accused came to the hospital together with a friend, Mr Reade-Jahn senior. Dr van Zyl had to examine a laceration wound to the left upper abdomen to establish whether stitches were required. She did not consider the wound deep enough for stitches and just cleaned it and clipped it with staples.
During the first visit the Accused was talkative. She noted on the J88 form that the Accused was confident, not emotional, conversing casually and that he was relaxed with the staff. During cross-examination it was put to the witness that the Accused was considered to be very traumatised by the police and that he was emotional and crying when he met with his family after he had been released by the police. It was denied that the Accused was friendly and relaxed. Dr van Zyl was adamant that if that had been the case, she would not have made such a note about the emotional status of the Accused. Dr van Zyl testified that there was no indication of trauma as alleged by his family during the first visit. The Accused was fully orientated. She noted that there was a slight smell of alcoholic metabolics on the breath of the Accused. According to the Accused’s version, he had a beer before he went to the mediclinic the first time.
When the Accused was brought in the second time, the police informed Dr van Zyl he was a possible suspect in a murder case. The second visit was conducted on a question/answer basis and the Accused was less friendly, than the first time. He appeared to be less forthcoming and more formal. Dr van Zyl took a blood sample from the Accused and had to record his injuries on a J88 form, Exhibit “OO”. He did not dispute that he was in a quiet mood during the second visit to Dr Van Zyl.
Visits to the Family House and the Demeanour of the Accused
Cornelius van Breda testified that after the incident he visited the house twice together with other family members. On one of the visits the Accused accompanied them; it was on the occasion they packed MARLI’s personal belongings. The Accused was inside the house on the ground floor and indicated what he wanted and took whisky. The Accused denied going inside the house but confirmed requesting to have the Japanese whisky that he bought for his father in Australia. It was put to Mr van Breda that the Accused also requested to have a bottle of his father’s aftershave. The witness was adamant that the Accused was indeed inside the house during one of the visits and that the Accused went to sit in the car when they packed MARLI’s belongings. Requesting no other valuable or sentimental items belonging to his loved ones does not take the matter any further. No adverse inferences are drawn by the Court from the visit to the house after the incident.
The Demeanour of the Accused in Court
During the court proceedings, the Accused became emotional from time to time, for example when clips of the emergency recording were played in court and during the testimony of the pathologist. It is to be expected that it would be emotional to relive the traumatic events and his reaction was not unusual in the circumstances.
During his testimony the Accused appeared to be uncomfortable at times and at other times he appeared confident. On a question whether he was the only person alive that could remember what transpired the night of the murders, the Accused, almost sarcastically, responded that he had no idea what the attacker’s memory is like. He would make statements like “we made every effort to minimise my exposure to those photos” with reference to the photo album Exhibit “A”. At one point he wanted to clarify what his counsel was objecting to. What struck the Court, was that the Accused did not show a great deal of emotion, even when he demonstrated the blows when the attacker hit RUDI and his father as well as the altercation between himself and the attacker. At times he would give a lot of factual detail just to be vague when he was confronted with difficult issues, eg the dog’s illness and why it was not barking, in what position his father was when he was attacked by the intruder, as well as why he did not warn and help his mother and sister.
The Weapons used during the Commission of the Crimes
The Axe, Exhibit “1”
Defence counsel admitted that the axe, handed in as Exhibit “1”, is the same axe that appears in the photo album, Exhibit “A”. and agreed that the axe appeared to be new.
It is clear that the axe in the photographs had been used to attack the victims. Apart from the visuals contained in the photo album, Lt Col Sharlene Otto, attached to the SA Police Services as the Chief Forensic Analyst and Reporting Officer at the Biology section of the Forensic Science Laboratory, testified that the DNA profile of the majority of the victims could be read into swab blood samples taken from the axe (see Exhibit “ZZ1” and “ZZ4”).
The Place Where the Axe Originated from
The State submitted that the axe belonged to the van Breda family.
James Reade-Jahn, MARLI’s friend, did not recognise the axe, Exhibit “1”, as the one belonging to the van Breda family. However, he recognised the size and shape of the axe as similar to the one he had seen in the garage and at the fireplace. He never saw the van Breda family using the axe. From his recollection, the head or top of the axe was black but said that he could be wrong about the colour. Exhibit “1” is a dark green headed axe with black at the top. Captain Joubert testified that the axe had a dark blade appearance. The description given by Mr Reade-Jahn was similar to Exhibit “1”, except for the colour.
Ms Precious Munqongani, the housekeeper or domestic worker, testified that the axe she identified, was the same type of axe, and similar in size and appearance, as the one she had seen at the house (also see Exhibit “F”). The axe was normally stored in the scullery on the shelf behind the ironing board as can be seen in Exhibit “A72”. It had been kept there ever since she started working for the van Breda family in October 2014. The ironing board was usually stored in the same position unless she was using it. She said that she had seen a lot of axes in her lifetime and described the axe as a small size axe. The axe was hardly used and always in the pantry.
Sergeant Appollis testified that only one axe had been found on the crime scene by the police. There was no indication of a second axe and no axe was found in the pantry after the incident.
Although Precious Munqonqani and James Reade-Jahn were aware of the presence of the axe in the house, the Accused distanced himself from the axe in his statement to the police (see paragraph 8, Exhibit “SS”) and in his testimony. According to the Accused he did not know the family had an axe in the house, despite living with his family since August 2014. It is noteworthy that Mr Reade-Jahn and MARLI were in a relationship from February 2014 onwards and he, as a visitor, was aware of the axe. According to Mr Reade-Jahn, MARTIN bought the axe in 2014. It does seem that the axe was hardly used by the family. Importantly, the Accused conceded that Exhibit 1 and 2 originated from their house during cross-examination by the State.
A Second Axe and the Absence of MARLI’s Blood on Exhibit “1”
It is the State’s case that the injuries sustained by the deceased and MARLI were caused by the axe found on the scene, Exhibit “1”. Defence Counsel suggested during the testimony of Captain Brown that a second axe was possibly used during the commission of the crimes. It was the contention of the Defence that the chance of Exhibit “1”, being the weapon with which MARLI was attacked, is virtually nil. MARLI had eight (8) penetrating wounds without leaving any trace on Exhibit “1”. It is assumed that Defence counsel is referring to blood or swab DNA. Defence counsel argued the DNA evidence refutes the State’s narrative completely. In Court the Accused maintained that there was more than one attacker in the house the morning in question. It was argued that the only reasonable possibility is that MARLI was not attacked by the same assailant who attacked the other family members and that she was also not attacked with Exhibit “1”. This submission was made on the premise that the DNA evidence is accepted by the Court.
Captain Marius Joubert the Bloodstain Pattern Analyst and Forensic Crime Scene Expert, testified that MARLI was repeatedly hit with an object similar to the axe, Exhibit “1”. Of importance is that according to Dr Daphne Anthony, the State pathologist, the type of injuries to MARLI’s head was similar to the type of injuries sustained by the other three deceased members of the family. They sustained chop and incised wounds and the measurements of MARLI’s wounds were more or less the same as in the case of the other victims. Prof Jacob Dempers, a registered Medical practitioner and Pathologist, testified with reference to the wounds of MARLI and the deceased, that all the defects appeared to be large in length and penetrated quite deeply into the tissue. It is highly unlikely that the alleged perpetrators would fortuitously bring along a similar axe than the one kept in the van Breda home inflicting similar injuries, and that a second attacker would inflict injuries with more or less the same degree of force.
The Defence DNA expert, Dr Antonel Olckers, testified she could not explain the presence of MARLI’s Touch DNA found on the axe. DNA could remain for quite a while on a surface depending on the type of surface. However, Dr Olckers was unable to confirm how long Touch DNA could remain on an item.
TERESA’s DNA was found on the head of the axe in mixture results. In the result the inference can be drawn that she had been attacked with the same axe as RUDI and MARTIN. A mixture of RUDI and TERESA’s DNA or possible blood, was found on the axe blade and head of the axe (see swab 6(h), paragraph 5.8, Exhibit “DDD1” and paragraph 4.1.5, Exhibit “ZZ4” and paragraph 4.1.15, Exhibit “ZZ1”). Her Touch DNA was also found on the axe (see paragraph 4.1.17, Exhibit “ZZ1”). She also possibly might have touched the axe while defending herself.
MARLI sustained her injuries during the confrontation with the attacker, most likely in the same area as TERESA. It is highly unlikely that they were attacked by two different attackers in a relatively confined space with similar weapons at more or less the same time. The Accused confirmed during cross-examination that MARLI was eventually found in about the same position from where he initially glimpsed her in pursuit of the attacker. Although MARLI could move her limbs, no evidence was presented that she could make significant movements to move from one spot to the other.
The axe did not have as much blood on it as would be expected, if it was used in so many murders. All the victims were struck multiple times. When one used the axe repeatedly and the axe impacted with the next victims, blood would be “projected” from the axe.
Captain Joubert collected eight (8) swabs from the axe, four (4) swabs from the handle of the axe and four (4) swabs from the blade of the axe (see paragraph 15, Exhibit “DDD1”). The swabs 6a – 6h represented the entire axe (see Exhibit “DDD9”). Captain Joubert took the swabs in addition to the four swabs taken by WO Hitchcock, namely swabs “121A – B” and “122A – B”. Three of the swabs taken by WO Hitchcock were tested for the presence of blood and one test was for Touch DNA. Despite the fact that the swabs were representative of the entire axe, only certain random blood spots on the axe were identified and analysed. Captain Joubert testified that it was possible that a spot on the axe had been missed when the eight samples were collected. Furthermore, Lt Col Otto testified that in respect of the blood swab from the bottom of the axe handle, she could only include the reference sample of the Accused in the mixture although there was more DNA. The other DNA belongs to family members, but she could not say to which family members (see page 7, Exhibit “ZZ1” and “ZZ5”). Therefore additional DNA was found but it was not enough to reach a result. The possibility that MARLI’s blood was also on the axe, but that it was not enough to obtain a DNA profile, cannot entirely be ruled out.
A Second Axe and the Absence of MARLI’s Blood on the Accused’s Shorts and Socks
Defence counsel argued if MARLI was attacked with another similar object, it would also explain the absence of MARLI’s DNA on the Accused’s sleeping shorts and socks. Captain Joubert pointed out that none of the stains on the shorts, socks and two duvets were presumptively tested for blood with reference to his assumptions contained in paragraph 8, Exhibit “DDD1”. Defence counsel acknowledged that the chances that the stains were anything other than blood where a DNA result was obtained, were so slim that it could be ignored.
Captain Joubert testified that “The absence of evidence is not evidence of absence”. One could actually strike a person with an axe without getting a single drop of blood on you. The witness said the position of the attacker would play a role. MARLI had five (5) very deep lacerations on her skull and on her arm, ear and neck respectively (see the photographs, Exhibit “H” and Exhibit “BBB12”). All the wounds were on one side, namely the left side of her body, and one wound on the right side (Exhibit “H13”). Captain Joubert said the absence of MARLI’s blood could possibly be explained because the injuries were not close to each other. In the case of impact to the blood source, most spatter could be directed away from the attacker, very little would come back to the attacker. That might explain the absence of MARLI’s blood on the shorts and socks of the Accused.
In conclusion, Captain Joubert confirmed the following possibilities as reasons for the absence of MARLI’s blood on the shorts of the Accused:
The Accused was not the attacker;
The directionality of the blood spatter was away from the attacker; and
Some of the 19 stains where no DNA profile was found, could have emanated from MARLI or could be MARLI’s blood.
If there was a second axe used to attack MARLI, and carried by the attacker from the first landing to the back door, around the house to exit via the side gate on the other side of the house, the absence of a corresponding drip trial or blood appears to be unlikely. No DNA was found pertaining to the possible blood drop on the kitchen door, and according to Lt Col Otto it could possibly have been animal blood. Only human DNA can be extracted from blood. MARLI was also not the donor of the two solitary drops below the boys’ window on the wall of the adjacent property.
The Accused’s fingerprints were not found on the axe, whether he handled the axe when trying to defend himself or to attack his family.
Concessions by the Accused regarding a Second Axe
During cross-examination by State counsel, the Accused conceded that the attacker used the same type of weapon (an axe) and executed the same type of attack (blows to the head) on the victims. It is highly unlikely that a second person would have executed blows in predominantly the very same area as the other attacker, ie the head of the victims, and with more or less the same degree of violence or force. It is also unlikely that TERESA and MARLI would have been attacked by two attackers almost simultaneously in the same area.
The Accused said it was plausible that there was a second axe on the scene. However, the Accused conceded that his family members were all attacked by the same attacker, wielding the same weapon. He said he only saw one attacker and one axe. When asked whether he accepted that no other axe was found and that it was unlikely that there was a second axe on the scene, the Accused agreed. He agreed that no evidence of a second axe exists.
During the emergency call the Accused told Ms Philander that “someone” attacked his family, three adults and one teenager, with an axe. No allegations of a second attacker with a second axe was made by the Accused shortly after the incident.
Conclusion re Second Axe
Apart from the fact that it can be clearly seen on the photographs in the photo album, Exhibit “A”, that Exhibit “1” had been used to commit the crimes, the Accused himself only mentioned one axe used by an alleged intruder. Captain Brown testified that she cleaned the axe herself during her investigation. The Court finds that there is no convincing basis for the contention that a second axe had been used during the attack. The Court is satisfied that Exhibit “1” is the only axe used during the commission of the crimes and that it belonged to the van Breda household, being fairly new as well as similar in size, shape and appearance as the axe kept in the house, as well as the fact that no other axe was found in the house or the pantry. No evidence of the presence of a second axe exists on the Accused’s own version.
The knife, Exhibit “2”
A knife, handed in as Exhibit “2”, was found on the scene, partly hidden under RUDI’s bed (see Exhibit “A205, 206, 208, 237, 238” and Exhibit “F2”). The Accused alleged that an intruder stabbed him with a knife. The Accused testified that the attacker recovered fairly quickly after being disarmed and came back at him with a knife in his right hand. The Accused did not see where the knife came from. The Accused said that he pulled the knife out of his side and dropped it, presumably somewhere on the floor in the first bedroom (also see paragraph 33, Exhibit “J”).
On 24 August 2015 Captain Steyn and Warrant Officer Hitchcock compared Exhibit “2” with the knives inside the house. The contents of the drawer in the kitchen where the knives were kept and a set of Victorinox knives can be seen in Exhibit “E3”. According to Captain Steyn, two knives and a fork inside the drawer in the kitchen looked the same as Exhibit “2”.
The Accused testified that Exhibit “2” resembles their kitchen knives and agreed that the knife came from the kitchen. The Accused confirmed that the knives were kept in the top drawer. The extended view of the kitchen can be seen in Exhibit “A33 – A36”. The kitchen appeared to be undisturbed except for the two drawers in the same location; it was the only cabinetry disturbed in the kitchen.
The Court is satisfied that Exhibit “2” belonged to the van Breda household, being part of a set of Victorinox knives kept in the kitchen drawer.
Motive of Alleged Intruder(s) and the Weapons Used
An axe would be a peculiar choice of a weapon for a burglar or thief to take along to the intended crime scene. Before the attack the van Breda family were presumably all asleep, except for the Accused who was in the en-suite bathroom of the first bedroom. The Accused did not hear intruders inside the house before the attack on his brother. There was no risk of identifying the balaclava wearing intruder(s) and therefore no reason for the intruder with the intention to steal to wipe out almost an entire family, oblivious to the presence of the intruder(s). The violence prevalent in the country does not serve as a convincing explanation, as argued by Defence counsel, for this scenario.
If the intention of the intruder(s) was to kill the occupants of the house, it would be senseless not to bring a weapon along. The alleged intruder clearly planned the commission of the crimes by wearing gloves, dark clothes and a balaclava mask. Laughing whilst attacking family members, certainly appears to be strange behaviour for a random assailant. It can possibly be expected from a perpetrator with a personal issue.
The Accused conceded that it would be strange that the persons who planned to enter the house and attack the family, came unarmed or armed inadequately that night. He found it strange that the one person who went upstairs was also incidentally the same person who was armed with both the knife and the axe that came from the house.
The Severity of the Attack
The degree of violence displayed towards the deceased victims and MARLI, seems to be excessive. All the deceased and MARLI had several wounds directed at the part of the human body with a high mortality rate according to Dr Anthony, a Senior Pathologist.
The attack on the Accused was certainly not with the same intensity than on the other family members, so it is unlikely that the attacker had a grudge against the Accused. On a question why the Accused did not have potentially fatal wounds, he conceded that the attack on him was more restrained compared to the other family members.
Motive to Commit the Crimes
Cornelius van Breda testified that his brother, MARTIN, had no enemies. He was not involved in underhanded business transactions and that MARTIN’s former colleagues had the greatest respect for him. Mr Reade-Jahn and Ms van der Westhuizen testified that the van Breda’s were a normal family with normal differences.
The Accused testified that he was not aware of anyone bearing a grudge against the family members. If the alleged intruder wanted to kill MARTIN, it does not explain why he attacked RUDI first. The Accused agreed that initially the attacker targeted RUDI and then the rest of the family. The Accused testified he could not think of a reason why RUDI appeared to be specifically attacked and why the intruder(s) did not simply remove valuables from the house. RUDI studied and lived in Australia before the attack and was home only for a short while for a holiday. It is unlikely that he made enemies, going to that extent, in such a short time.
Defence counsel argued that the Accused had no reason to attack his family and had no motive as the family was a close-knit family without serious issues. Furthermore, it was argued on behalf of the Accused that there seemed to be no tension or unresolved issues in the van Breda household up to 22h00 on 26 January 2015, based on communication via whatsapp between the Accused and Bianca and the lack of communication between MARLI and James after 22h00 that particular night.
The Accused’s version is that there was no argument amongst the family members on 26 January 2015. Arguments in the family, centred around MARLI because she was growing up and starting to rebel. The Accused denied having any serious arguments with his family and stated that there was nothing out of the ordinary the evening before the attack.
No evidence exists to indicate a specific motive for killing any of the apparent decent family members, whether they were killed by an unknown intruder or the Accused.
The neighbours of the van Breda family, Ms Op’t Hoff and Ms Taljaard, testified that the Estate was a safe and secure environment to stay in and none of them reported any suspicious persons or incidents in the vicinity of Goske Street the day of the murders. Ms Taljaard heard nothing untoward that particular night, despite being a light sleeper and the fact that the murders were committed not far from her house. The only unusual event or evidence of something unusual, was the loud male voices coming from the van Breda residence, heard by Mrs Op’t Hoff between 22h00 and midnight that particular evening.
Ms Op’t Hoff resided at 10 Goske Street across the street from the van Breda residence. She testified that she had heard loud male voices with an aggressive undertone that sounded like an argument from the direction of the van Breda house the night of 26 – 27 January 2015. It lasted from 22h00 until after midnight (00h10) without stating that it was unabated or uninterrupted; it merely went on continuously. She confirmed there were plants and shrubs in front of her house and that the windows and curtains were closed. Ms Op’t Hoff testified her house consisted of a lot of glass and french doors. During the inspection in loco it was evident that there is a balcony door leading from the boys’ room, to an outside balcony with a view of Ms Op’t Hoff’s house across the street. Ms Op’t Hoff’s uncontested evidence is that audio specialists tested the reliability of her version afterwards and confirmed the possibility of her having heard sound coming from the van Breda residence. Her sons were also woken at approximately 04h00 the next morning, fortuitously the time that the murders probably happened. Considering that it happened at a quiet time at night in a quiet environment and the other abovementioned factors, the Court finds that Ms Op’t Hoff must have been able to hear the sounds as she testified.
According to the Accused the van Breda men watched a movie called Star Trek 2 into Darkness. It was suggested that the movie was approximately two hours long and that was what Ms Op’t Hoff had heard between 22h00 and midnight the night of the murders. Ms Op’t Hoff was adamant that she did not listen to a movie with music and a sound track and testified that she was familiar with the Star Trek theme song. The loud voices were so disturbing that she had a fright. Ms Op’t Hoff is an independent witness that was unwilling to get involved. She did not implicate any specific person, including the Accused. Ms Op’t Hoff was impressive as a witness and the Court has no reason to reject her evidence.
It is inconceivable that an unknown perpetrator would gain entry to the Estate and house with great planning and effort, seriously injure the entire family in that manner for no apparent reason (except for the Accused), and flee again without taking obvious valuable items from the house. The Court does not have to speculate about the motive of the assailant.
The Intention of the Perpetrator
On 29 January 2015 Dr Daphne Anthony, a Senior Specialist in Forensic Pathology Services based at the Tygerberg campus of the University of Stellenbosch, performed the post mortem examinations and recorded her findings in the post mortem reports marked as Exhibit “L”, “M” and “N”. She was appointed as a Senior Specialist Forensic Pathologist at Stellenbosch mortuary from May 2009 until June 2016.
Dr Anthony said the use of the axe, Exhibit “1”, would fit in with the injuries. She described the axe as a heavy object with a sharp edge, and said that it was consistent with the chop wounds inflicted with a tremendous amount of force and high rate of speed.
According to Dr Small Smith the injuries presented by MARLI are not only potentially fatal, they are in fact usually fatal (see Exhibit “HHH”). He confirmed that MARLI’s prognosis upon admission was very poor. The injuries fit in with infliction with a sharp instrument like an axe.
The deceased injuries were confined to the head. RUDI suffered the most violent attack of the deceased, in terms of the number of injuries. Second was MARTIN and then TERESA, with lesser injuries. Dr Anthony testified that MARLI’s injuries to her head and neck were consistent with injuries sustained by the other three deceased family members. Injuries involving her hands and extremities were indicative of self-defensive wounds and were multiple in origin, indicative of a severe scuffling. Considering the seriousness and number of head injuries, the location of the wounds and considerable amount of force with which it was inflicted, there can be no doubt that the attacker had the intention to kill the deceased and MARLI. Dr Anthony testified that traumatic head injury has a high mortality rate. The Accused conceded during cross-examination that the intent was to kill if one hit a person over the head with an axe. Defence counsel rightfully conceded that MARLI’s injuries were life-threatening and were inflicted with the intension to kill her.
Whether an intruder entered the house armed with an axe or the perpetrator armed himself with an axe from the pantry inside the house, the attack on the presumably sleeping family members on the first floor of the house and in the early hours of the morning, had to be planned. The weapon had to be taken to the first floor; it would not have been readily at hand at the time of the attack.
MARLI’s injuries were indicative of a severe scuffling. This was in comparison to RUDI’s pinkie wound and TERESA’s thumb. With MARLI, more severe injuries and specifically the location of the injuries more on the extremities and hands, were indicative of a more significant struggle going on during the attack in an attempt to save her life.
Dr Anthony said she could postulate the possible sequence of events, inferring from her observations.
She inter alia postulated that RUDI’s injuries showed him lying on the bed on the right side of his face due to the fact that his injuries were located to the lateral aspect the neck and the left as well as the side of his neck. With the infliction of the trauma, he was aware of the blows and what was coming. He raised his hand in an attempt to ward off the attack, that was why he sustained an incised wound on his little finger with lifting of the nail. First the two incised wounds described in paragraph 4.1 and 4.2, Exhibit “L” were inflicted and the other wounds followed.
The Injuries of the Accused
On 27 January 2015 at about 10h30 Dr Albertse examined the Accused as a victim. Dr Albertse recorded the injuries sustained by the Accused on a J88 form which was handed in as Exhibit “LL”. The recorded injuries were read out by Dr Albertse. The Accused had four parallel, “very superficial” cuts on his left forearm, two above his right nipple and another above that, a superficial stab wound on the left thorax, one superficial cut above his left nipple, and two stab wounds to the left abdominal area. Most of the injuries on the front of his body and forearm broke the skin. On his back, he had a scratch on the left side of his back over the scapula and a scratch on the right side of his back under the scapula. These scratches did not break the skin. He had two abrasions on his back. There was old scarring on his right knee, a bruise and swelling just below it, and another two old bruises. He had swelling above his left eye and a bruise under it.
Dr Albertse testified that she did not regard his injuries as serious.
Possible Self-Inflicted Wounds
The Accused alleged that one of the policemen that accompanied him to Dr Albertse, asked her whether the wounds were self-inflicted and that Dr Albertse replied that she would see what she could do. Dr Albertse could not remember whether the question was asked at the time. At a later stage Colonel Beneke asked her opinion about the cut wounds on the thorax and left forearm of the Accused and the method of inflicting the wounds. Dr Albertse did not give an opinion but instead asked Dr Tiemensma to furnish an opinion on the issue. It was put to Dr Albertse that the Accused will say that the assailant had a knife in his hand and cut and stabbed whilst the Accused held onto the arm of the assailant. A demonstration by Adv Botha was described as follows: The Accused held onto the arm of the assailant with his hand close to the elbow of the assailant who cut the Accused over his thorax and arm. Dr Albertse replied that it was possible but unlikely. However, she indicated that she was hesitant to say it was unlikely. It is noted that during his testimony the Accused testified that he grabbed the attacker’s right hand, holding the knife, just below his wrist – and not close to his elbow as stated by Adv Botha. In his plea-explanation it was alleged that the Accused was holding onto the right forearm of the attacker, not just below the attacker’s wrist (see paragraph 31, Exhibit “J”) as he testified later.
Dr Marianne Tiemensma is a Specialist Forensic Pathologist and Clinical Forensic Practitioner that was employed at the Clinical Forensic Unit at Victoria Hospital, Wynberg at the time of her testimony. Her expertise include pathology which she started to practice in 2007. Apart from forensic pathology, she also practiced clinical science. Her qualifications and experience are listed in Exhibit “NN”. Dr Tiemensma was asked by SAPS and Dr Albertse to comment on the method used and the manner in which the Accused sustained his injuries. The witness received a written request from Dr Albertse, the J88, a typed copy of the translation of Dr Albertse’s findings in English and the photographs contained in Exhibit “C”. The police also brought the suspected weapon, Exhibit 2, in an evidence bag to her office. At a later stage she also had the plea-explanation of the Accused at her disposal. Colonel Beneke requested telephonically whether the witness could comment on the wounds of the Accused and the issue of self-inflicted injuries. She said it was not unusual to receive such a request. Dr Tiemensma compiled two reports on her findings with regard to the injuries sustained by the Accused, and handed in as Exhibit “NN2 and 3” respectively.
Defence counsel submitted that the mandate with which Dr Tiemensma was tasked, was embedded with an inherent confirmation bias. There are no grounds for this submission as Dr Tiemensma not only motivated her conclusion thoroughly, she also referred to text book pictures for confirmation of her conclusion. The absence of bias is inter alia illustrated by her concession that it is a difficult task to determine whether injuries have been self-inflicted or not. She also identified certain injuries to be self-inflicted and others not necessarily so. It was further argued that her analysis cannot be afforded the same weight as evidence stemming from a physical contemporaneous examination of the patient and his injuries. The same argument goes for the Defence experts on the injuries of the Accused. Dr Tiemensma had the opportunity to form an opinion from enlarged photographs and the detailed notes of Dr Albertse. No tests were required to come to a conclusion.
Dr Tiemensma summarized the Accused’s injuries as thorax, head, back and leg injuries (see Exhibit “NN2”). Dr Tiemensma testified that the injuries on the dorsal aspect of the left forearm, marked (a) – (d) and to the chest, marked (e), (f) and (h) were consistent with self-inflicted injuries (see the J88 completed by Dr Albertse, Exhibit “LL”). The other injuries were less likely to be self-inflicted and were unusual if self-inflicted. During cross-examination Dr Tiemensma conceded that it was very difficult to determine whether wounds were self-inflicted but in this instance she was adamant that it was indeed the case. The fact that the wounds were superficial and non-fatal, was not necessarily conclusive. One had to look at all the characteristics of the wounds. The more characteristics that would present, the more suspicious you would get. One would then look at how they would have been sustained, ie the history and discrepancies. Conclusions of possible self-inflicted wounds are determined by a number of factors and one had to look at it in totality.
The cut marks on the chest were superficial and non-fatal. Incisions had an equal depth, were parallel and avoided sensitive areas like nipples. The chest injuries were in a reachable area for self-infliction.
The forearm wounds were also in keeping with self-inflicted injuries, non lethal, superficial, of an equal depth, and the cuts were parallel. It was unlikely for a victim who was being attacked, to stand still and not take evasive action to allow such multiple and uniform injuries to be executed. The incisions were on the left forearm and the Accused was reportedly right-handed. It was not a typical area where one would expect defence wounds with sharp instrument attacks; defence wounds were more likely to be found on the ventral/palmar aspect of the forearm or wrist, elbows, palmar surface of the hand in grasping motion in an attempt to grab the weapon, or on the backs of the hands or fingers from non-grasping movements in attempts to ward off a weapon. The forearm injuries were in reachable areas for being self-inflicted.
Therefore the injuries to the forearm as well as the cuts to the chest were consistent with being self-inflicted. The other injuries of the Accused were less likely to be self-inflicted.
Dr Tiemensma referred to her report dated 12 February 2015, page 2, Exhibit “NN2” with regard to the reasons for describing some of the Accused’s injuries as possibly self-inflicted injuries. If one looked at the type of wounds to his chest, abdomen and arm, they were superficial and non-fatal. The cuts occasionally penetrated the skin and the incisions were regular and were linear and parallel. The wounds were grouped and similar in appearance. It appeared to be typical self-inflicted wounds. The wounds were regular and equal in depth and origination, uniform, linear, no movement in the wounds and parallel. Equal depth could be inflicted by another person but the track and direction of the wound would differ because a person would want to withdraw or evade the infliction of the wounds. There would be a deeper entrance and it would became more shallow if someone was stabbed by another person. The cuts were not only parallel but also avoided sensitive areas. It was unlikely that someone would have stood still and not taken evasive action. Self-inflicted wounds would usually be found on the chest, abdomen, arms or hands of a person. The wounds were in reachable areas and were accessible.
The witness added three more reasons to her report on which her opinion was based, ie the wounds were symmetrical, of uniform shape and that the same instrument had been used. Dr Tiemensma explained that symmetrical wounds were both sides of the body and have exactly the same appearance. The cuts could have been caused by one instrument. Conclusions of possible self-inflicted wounds are determined by a number of factors and one had to look at it in totality.
State counsel described the circumstances to the witness, saying that the alleged attack took place in the bedroom, at the foot of the beds with two persons facing each other with sharp weapons and pushing and pulling each other. Dr Tiemensma responded that in the circumstances holding on to each other it would be very difficult to execute very uniform and similar incisions/wounds to another person’s body. The angles and direction of the incisions would be different if a person pulled away. The wounds on the torso and left arm of the Accused were very similar.
It was the same attacker who inflicted serious harm to other people. She testified that it was very unlikely that the wounds were inflicted as demonstrated by Defence counsel.
Defence counsel put it to the witness that a person’s wrist could move and then only part of the skin would be slashed. The witness said with the movement, pushing and pulling, one could not slash with resistance applied to the hand; one might be able to stab but not slash.
The wounds were suspicious even before the witness had the benefit of the plea explanation and when she compiled Exhibit “NN2”. The witness said the Accused indicated the degree of movement in paragraph 31 by saying that they pushed and pulled each other, stepping forward and backwards. She agreed that the adrenaline level of the Accused would have been raised quite high and that a person might not feel the pain with superficial cuts. She asked why would anybody stand still when the cutting happened. One would not be defending yourself by standing still. If the Accused stood still it would be possible to have made those cuts but the Accused never described that he was standing still during the struggle.
Dr Tiemensma said she looked at the totality of the appearance of the wounds. She testified that the wounds must not be evaluated in isolation. The wounds were on the left forearm of the Accused and he was right handed. The cuts were also superficial and non-fatal. There was dried blood in all of the wounds but the blood spots were not relevant. Dr Tiemensma testified that the wounds were parallel and grouped. Cuts (b) and (c) would met up if they had continued.
Dr Tiemensma testified that movement or fighting with resistance would not have resulted in those wounds. Self-mutilation did occur. She explained that in case of self-inflicted cuts a person would be in control of the amount of pain, the depth and the location. Cutting and slashing and another person inflicting the wounds meant one did not have control of the movement. She said the cuts were not in keeping with flicking movements of a knife. The wounds would be deeper on one side and would go shallower. If one inflicted the wound oneself, one could control the movement.
Dr Tiemensma testified that there was a very strong contrast in comparison to the serious and fatal head injuries that the rest of the family suffered. All the described injuries of the Accused were superficial, minor and non-fatal with the most severe injury being the superficial stab wound to the abdomen (wound g) with a reported depth of 10 mm. None showed any characteristics that it was inflicted with the same intent or force as the deceased’s wounds. The rest of the family had extensive wounds caused by an axe with underlying skull fractures. The Accused had no defensive wounds one would have expected if another party was present. If one would try and disarm an attacker and grabbed at a knife or axe, one would expect there to be defensive wounds.
Prof Jacob Dempers qualified as a medical practitioner in 1994 and was a professor in Forensic Pathology since 2003. He was head of the Clinical Unit, Division of Forensic Medicine, University of Stellenbosch
He testified that it was not a common occurrence for, when a group of people were attacked, the wounds to differ significantly from one person to the others. If an axe or a knife was utilised as the object to create force, usually in a situation where malice was intended towards people (i.e. not accidental injury), the wounds show some similarity. They see this in forensic pathology in cases where more than one member of a family was injured. In this instance all the defects pertaining to the van Breda family members appeared to be similar. Similar wounds were not present on the body of the Accused. Prof Dempers found it hard to believe that the assailant would only scratch the Accused. A right handed person possibly inflicted the wounds because of the fact that the wounds were predominantly on the left side of the Accused’s body.
Prof Dempers testified that the same assailant slashed people with an axe and showed significant violence towards the deceased; there was no reason why he would be fighting differently with the Accused
In his report dated 27 August 2015, Exhibit “PP”, Prof Dempers stated that the scratch wounds on the Accused’s arm were all equal in depth and were almost perfectly parallel. Two superficial stab wounds were present on the chest and abdomen which might represent tentative or “test” stab wounds. The distribution pattern was equal in terms of the wounds on the chest. The witness indicated it was hard to believe that the assailant had succeeded in causing linear scratches, some only a few millimeters apart, without the Accused flinching and causing further wounds to change direction in the same region, or at least resulting in a variation in the depth of the wounds.
Prof Dempers said self-inflicted injuries in text books, made with a free hand and a controlled movement, had exactly the same appearance. In case of a struggle or any significant movement, it would not look like that and would not virtually have the same length etc. The cuts were made with the tip of the knife, which the witness referred to as scratches, causing blood spots. Furthermore the witness said it could be possible that the Accused sustained the cuts in a struggle, but it was highly unlikely. If part of a struggle, chances of the cuts having virtually the same length and being parallel were not likely. Prof Dempers concluded it was not plausible and highly unlikely.
In conclusion the Court finds that there is a striking similarity between the appearance of the wounds of the Accused on his forearm and thorax and textbook photographs of self-inflicted wounds. Dr Dempers corroborated the testimony of Dr Tiemensma. The general criticism against their testimonies, is directed at the premise that they are biased witnesses. The Court finds they were both highly professional, outstanding and reliable witnesses. Despite the fact that Dr R Perumal, a pathologist, was advising Defence counsel in this matter and was present in the Court, no expert witnesses were called by the Defence on this vital issue. During argument it was submitted by Defence counsel that Dr Perumal was not qualified to comment on self-inflicted injuries, and therefore he was not called. Adv Botha also suggested that Dr Perumal was not mandated to deal with the matter. No evidence was accordingly tendered to gainsay the State’s compelling evidence in this regard. If the Court accepts that some of the injuries of the Accused were self-inflicted, the credibility of the Accused is significantly and seriously affected.
During his testimony the Accused explained that the attacker was holding the knife in his fist with the blade downwards and the sharp edge facing away from the attacker. The attacker allegedly inflicted the injuries by flicking his wrist, despite the blade pointing away from the attacker. State counsel confronted the Accused with the appearance of his wounds and said that it matched the text book version of self-inflicted wounds. It was similar in nature and of similar depth, all horizontal and more or less parallel to each other. The Accused conceded that his wounds did conform to those descriptions but denied that he inflicted harm upon himself. The Accused said the match between his wounds and self-inflicting wounds was purely fortuitous.
Collection of Forensic Samples and Exhibits
Warrant Officer Hitchcock, from the Criminal Record Centre in Worcester, with 22 years’ service at the time of his testimony, testified that he had covered thousands of crime scenes. He was a trained evidence collector, the sealing of exhibits and dispatching thereof. He arrived at the crime scene at 10h22 on 27 January 2015; other policemen were already there. No persons not being part of the investigation, were present.
Several problems with inter alia the marking and sealing of exhibits were pointed out by Defence counsel. Some samples were numbered incorrectly in comparison with the photographs in Exhibit “A”. For example a blue T shirt with possible blood on it, collected at the crime scene, as can be seen in Exhibit “A552”. and “A553”, should be Exhibit 124, not Exhibit 118 or 119. It was a typing error on the side of the witness. Exhibit numbers for Exhibit 121A and B and 122A and B had to be swabbed (see Exhibit “A547 – A550” and “VV7 -8”). The Court is satisfied that the numbering of the exhibits was explained and rectified by Warrant Officer Hitchcock during his testimony. Except for Exhibit 117, all samples were properly sealed and no evidence of tampering or contamination was presented.
DNA Analysis and the Relevance thereof
The significance of DNA evidence depends crucially on other circumstantial evidence; it does not stand in isolation. In the present matter, a few inconsistencies with the numbering of the exhibits and the sealing of one of the exhibit boxes were pointed out but the chain of custody was not otherwise disputed. The scientific validity of the DNA results were strenuously disputed by Defence counsel. It was the Defence case that the results had to be ignored, save for results in respect of twenty three (23) samples. In summary, Defence counsel submitted that the DNA evidence is inadmissible for reasons stated hereunder.
Lieutenant Colonel Sharlene Otto is attached to the SA Police Services as the Chief Forensic Analyst and Reporting Officer at the Biology section of the Forensic Science Laboratory. She stated her qualifications as contained in paragraph 2 of Exhibit “ZZ1”. She has been attached to the Biology Unit of the FSL since November 1993. Since then she has received intensive training in inter alia DNA techniques and attended various national and international workshops, seminars and conferences pertaining to statistics, Short Tandem Repeat (STR) and Forensic related practices. She successfully completed both internal and external proficiency tests on a regular basis. In total she has thirty one (31) years experience in the biological sciences.
She prepared four reports on the Van Breda murders. These have been handed up in evidence as Exhibit “ZZ1-4”.
Basis on which the DNA results were challenged
Defence counsel challenged the competency and proficiency of Lieutenant Colonel Otto and the reliability and functioning of the laboratory according to international standards. Defence counsel did not challenge the reliability of the equipment or machines used or the correctness of specific results, unless specifically pointed out.
In 2001 Defence expert, Dr Antonel Olckers, started DNA Biotec (Pty) Ltd and served as its CEO since then. Her curriculum vitae was attached to her report dated 06 October 2017, Exhibit “EEE”. Her skills and experience included DNA isolation, DNA quantification via qPCR, electrophoresis, STR analysis, DNA sequencing, as well as the interpretation of DNA sequences, qPCR analyses, STR results and STR based DNA profiles. She has eighteen (18) years of experience in the interpretation and audit of forensic DNA evidence. Her mandate was to assess the scientific validity of the results reflected in the reports compiled by Lt Col Otto and Warrant Officer Nel.
At most it was the Defence case that a sample taken near where MARLI van Breda’s body was found, presented with foreign allele, not belonging to the family. Lt Col Otto disagreed with the Defence expert, Dr Olckers, in this regard.
The result of the blood or DNA found in the corner of the shower floor in the first bedroom, was also challenged to the effect that it covers two donors and not three donors as testified by Lt Col Otto. Lt Col Otto conceded that it could be the case.
The Defence argued that the results of forty (40) other samples where less than one (1) ng of input DNA was used in the PCR, should be ignored as it was of no value.
Further it was the Defence case that the bulk of the DNA results were scientifically invalid because certain Standing Operating Procedures (SOP’s) were not complied with.
The functionality and non-accreditation of the FSL in Plattekloof was also challenged by Defence counsel. Lt Col Otto testified the profiler plus kits used in SAPS laboratories are bought from US companies and are in accordance with international standards. Laboratories all over the world make use of it. It must have certain loci (genetic markers) which must be scientifically accepted. The witness testified that FSL now uses the Identifier Plus Kit which identifies 15 loci. It might have a better identification and match probability. In 2015 other countries like Australia and the UK used 16 and more loci. The STR kit was used in 2015 because the Identifier kit was not validated by them at the time. It would not have affected the results if the new kit had been in use, though one might have had an extra allele to differentiate between family members.mEquipment manufacturers have their own guidelines for use. The Pretoria laboratory has to validate the process but the Plattekloof laboratory does a verification as well.
Lt Col Otto testified that for the 24 years she has been working at the laboratory, the SAPS laboratory was not accredited with SANAS. The only difference between them and an accredited laboratory is an audit by SANAS. The SAPS laboratory is audited internally and not by SANAS. It is an international standard to be accredited. Accreditation of the laboratory is not a legal requirement in South Africa.
In this matter two hundred and sixteen (216) samples were analysed. Lt Col Otto testified that they did not struggle to get optimal DNA. Dr Olckers testified that this was a case with more samples than she had ever seen.
Adv Combrink handed in Exhibit “AAA10” containing extractions from the results contained in Exhibit “ZZ1”, ie the DNA profiles of five reference samples of the van Breda family and the mixture of all alleles of the DNA profiles of the five family members. The mixture of all alleles of the DNA profile from the reference samples of RUDI and Henri, gave the same profile. TERESA contributed fifty percent to their DNA profile, and the rest would differ. The mixture profiles, looking at the alleles, would be the same whether it was a mixture of the Accused, RUDI and TERESA or TERESA and RUDI but the gender would differentiate. However, both mixtures would include X:Y, indicating the male allele.
Lt Col Otto testified that she included those profiles that she could in respect of a mixture and also looked at the probabilities. Lt Col Otto conceded that where there was a mixture profile from the Accused, RUDI and TERESA, it could very well have been a mixture from the Accused and RUDI. For example, the DNA of the Accused, RUDI and TERESA found in the shower (Exhibit 117), could only be a DNA mixture of the Accused and RUDI. There was no distinction between the three people’s STR profiles in respect of the sample found in the shower. It was true for all the mixture samples. Lt Col Otto explained that she mentioned everything and that their reference samples could be read into the mixture DNA. She only included someone in the mixture result if she looked at the whole profile. For instance, MARLI got a 13 at the D5 allele, so she could not be read into the mixed profile of the sample found in the shower. At the D13 allele the entire family was 12:12 if one looked at the study of comparison of the different locus.
Defence counsel indicated that it is not in dispute that the Accused’s DNA mixed with that of RUDI was found in the corner of the shower that they utilised (Exhibit 117). Lt Col Otto testified because it is a shower, the use of soap and detergents or shower gel is expected. The sample tested positive for blood. The probabilities are slim to get body cells if a person washed himself. Body cells can be excluded because of the soap, shower gel and cleaning products used in a shower. Blood is more resistant to normal detergents. The Accused offered an explanation for the fact that RUDI’s and his own DNA was found in the shower, namely that they occasionally used to shave in the shower. Later the Accused added that shaving in the shower was a regular occurrence and that his father also shaved in the shower. The Accused said that if the DNA in the shower was not blood, then it might have been there as a result of them touching that part of the shower.
Dr Olckers dealt with the number of STR Loci used in DNA profiling in paragraph 3.5 of her report, Exhibit “EEE”. The FSL used the Profiler Plus Kit to generate DNA profiles in this case. The test provides for a comparison of alleles at nine (9) STR loci at a time when many countries had already been using tests comparing the alleles at fifteen (15) or more STR loci. The manufacturer discontinued the Profiler Plus Kit in 2016.
Dr Olckers illustrated in paragraph 3.5.3 the problematic nature of using only 9 STR loci DNA profiles. The D13 locus in the van Breda family was uninformative as the entire family had the same homozygous (two copies of the same allele) genotype at this locus, namely 12:12. The FSL was left with only 8 STR loci to distinguish between family members. The D5 locus was also not fully informative in this family, with three members homozygous (TERESA, RUDI and the Accused) and two (MARTIN and MARLI) being heterozygous (two different alleles) at this locus (see Exhibit “AAA10” as an example where one could not distinguish between family members in a mixture). The DNA profile of TERESA could not be distinguished from the mixture of RUDI and the Accused at the remaining 7 loci. The DNA profile of TERESA could be distinguished from the mixture of RUDI and MARLI and MARLI and the Accused. The witness stated in paragraph 3.5.4 of her report that the FSL could not determine whether certain samples reported by Lt Col Otto as mixtures, contained the DNA profiles of three individuals (TERESA, RUDI and the Accused), or whether the samples contained a mixture of the DNA profiles of only two persons (RUDI and the Accused). Nine (9) loci were not enough to distinguish between the family members, 15 loci might have been enough to make the distinction.
Dr Olckers dealt with the Interpretation and Reporting of certain Mixtures in paragraph 3.6 of her report, Exhibit “EEE”. According to Dr Olckers it appears that Lt Col Otto only took the qualitative aspects of the DNA profiles (ie the presence of alleles) into account when she reported her findings pertaining to the following DNA mixture profiles:
(i) nail scrapings, left hand of the Accused;
(ii) corner of the shower floor; and
(iii) shorts of the Accused, stain “120 – 69”.
Dr Olckers testified that Lt Col Otto’s report could have left the impression that the DNA of TERESA, RUDI and the Accused were present in the aforementioned samples. However, during cross-examination Lt Col Otto confirmed that each of these samples could with equal possibility have been a mixture containing the profiles of only RUDI and the Accused. According to Dr Olckers, it only takes the qualitative aspects of the DNA profiles into account; one could not distinguish between two or three family members’ qualitative profiles. When taking all the data, qualitative and quantitative data, into account, one alternative could be eliminated.
State counsel questioned the fact that the witness used two of the 40 samples, that she said should not be used for further analysis, to make calculations to determine the amount of male and female DNA in the samples. The witness herself made calculations on these alleged flawed results (see Annexure AO3, Exhibit “EEE”). Dr Olckers was confronted with the fact that she used the same data to say that the Court could just read two profiles into the sample and not three. Dr Olckers said she took the document that Lt Col Otto based her opinion on to show how wrong Lt Otto’s conclusion was.
The Court accepts that Lt Col Otto included all the profiles that could be read into a mixture sample. It cannot be said that Lt Col Otto was dishonest in this regard; she conceded the qualification immediately. However, it can be misleading if the result is not qualified, and by not stating all relevant information affecting the interpretation of results. Forensic analysts should be mindful of clouding the interpretation of ambiguous results.
Dr Olckers listed non-compliances with the process followed by the FSL. Dr Olckers testifed that the proficiency of six (6) analysts that worked on this case, including Lt Col Otto, was based on that a challenged proficiency test (Exhibit “AAA4” and “AAA5”). Therefore they were not regarded as proficient by Dr Olckers. Lt Col Otto testified that the analysts who dealt with this matter, are all competent and proficient and are specialists. It was never put to the State witnesses that the other analysts were not proficient. Dr Olckers testified it was indicated to Defence counsel, she did not know why they did not raise it. Once again, she based her opinion merely on the answer given regarding Item 3 of the test. The Court is satisfied that Lieutenant Colonel Otto’s competency is established above any significant doubt. She is a seasoned and qualified member of the FSL with extensive experience.
Dr Olckers had an issue with the absence of a date on a proficiency certificate issued to Lt Col Otto. Dr Olckers said the ISO guide stated the certificate had to be dated. The 1997 certificate received by Lt Col Otto could not be backdated; the ISO guide was issued in 2005 (see Exhibit “AAA2” read with Exhibit “AAA3”). If the certificate was issued prior to the ISO guide coming into operation in 2005, the witness accepted the certificate could not be backdated.
Another alleged non-conformation was that an alpha numeric signature did not appear on the relevant documents as required (see Exhibit “AAA6”). Dr Olckers conceded that there was an alpha numeric number on the document and that the letters “KS” were indicated as the signature.
Lt Col Otto testified the SOP’s put control measures and checks measures in place, ie quality control measures. So if they get a result, they can accept it because the sample moves through the process and passes all other control measures. She will be able to pick up if the SOP’s were not followed when there is a failure in negative or positive control or samples have been switched or in the case of contamination. There is also a data base for the analysts called the personnel elimination data base.
Dr Olckers testified that forty (40) samples with less than one nanogram (1 ng) of input DNA that had been analysed was not in accordance with the SOP’s (see Exhibit “AAA7” and “AAA7a”). SOP BIO0017P determines that the amount of DNA to be amplified using the AmpFLSTR Profiler Plus PCR Amplification Kit, should be between one and two point five nano grams (1 – 2.5 ng) unless the sample was highly degraded. If the DNA amount was too small and below the threshold, it was not always true that there would be no result. It is called stochastic effects and it meant the DNA result might no longer hold true.
Dr Olckers said that the forensic evidence should be ignored where the input DNA was below the threshold and less than 1 ng for purposes of crime detection.
State counsel pointed out that the FSL is a forensic laboratory, not a research laboratory with perfect samples. There are not always optimal samples on a crime scene. The Crime Index stated that 0.001 ng per micro litre could be used. Dr Olckers conceded that crime samples were more challenging and said 0.02 ng could be used. Furthermore, State counsel put it to the witness that Lt Col Otto testified that they had no problem in finding DNA in the samples. Dr Olckers responded that the answer found was not necessarily valid; science worked with a standard. However, Dr Olckers could not say the results were wrong or false. Importantly Dr Olckers conceded one could not get different profiles even if less DNA was used. The results were merely technically invalid.
The amount of DNA was more relevant in old techniques used, not with the PCR system. The PCR system prefers a lesser amount of input DNA. The 40 samples had been loaded with less than 1 ng but the results were valid and reliable. One should look at the peak heights rather than cut off values. Should the DNA be degraded to an extent, there would be no result. Lt Col Otto testified that quality rather than quantity was important regarding the issue of input DNA concentration. They definitely found sufficient alleles to have made a reliable and valid profile. In respect of paragraph 2, Exhibit “AAA7”, Lt Col Otto testified that she thought there were other samples apart from the 40 samples which had more than 1 ng input DNA concentration pertaining to those specific exhibits. For example, there was a blood sample and a Touch DNA sample pertaining to the Handle of the knife. Defence counsel said it was not disputing that less than 1 ng DNA could be used to obtain a DNA result; getting a result is not important, following the SOP’s is.
During the Defence case Dr Olckers was questioned about the extent to which the person without proper footwear compromise the veracity of the result. Dr Olckers could not comment on the likelihood of it impacting on the DNA result or the finding of the FSL. Defence counsel then made the concession that Exhibit “AAA8” was only a “sideshow” and indicated that the Defence was not relying on the photographs. Defence counsel is entitled to challenge the State case but it has to be done within reasonable limits. Defence counsel should refrain from wasting valuable court time with “sideshows” merely used to cloud the issues; it is not in the interest of justice to do so.
Dr Olckers conceded that she had never done a proficiency or efficiency test, internal, external or international. So she was not tested in respect of aspects involved in the current case.
Dr Olckers was not an impressive witness. She had to be asked continuously to answer questions more pertinently. The witness was reluctant to make concessions where it was appropriate and insisted on a formalistic, academic approach. Dr Olckers tended to give vague answers without answering questions posed to her, properly and directly. At the end of the day the accuracy of results is all that matters. Dr Olckers conceded that she had no experience in a forensic laboratory. The witness merely had an academic background in a laboratory and ran courses.
Of great importance is the following, even though the Defence team had access to the DNA samples taken at the crime scene, they opted not to retest them. The witness says she advised counsel in this regard. She did not know why they did not request retesting. Dr Olckers said retesting the samples was not part of her mandate. Although the Defence does not have to prove anything, it would have been the simplest of exercises to retest a few random samples to effectively test the validity of the results. It is also true that Defence counsel is entitled to test the State’s case but there should be a limit to fishing expeditions with sideshows. In this matter the accuracy of the results is not shown to be incorrect. Dr Olckers’ role and evidence amounted to an administrative audit of the processes involved in the DNA analysis. Dr Olckers testified that the results of the samples mentioned above were scientifically invalid, in other words technically invalid, because SOP’s were not followed strictly. She could not categorically state that the results were inaccurate. The Court is mindful of the distinction between judicial and the scientific measure of proof. The scientific measure of proof is the ascertainment of scientific certainty, whereas the judicial measure of proof is the assessment of probability. Speculation and possibilities cannot distract from the evidential value of the results in the absence of proof of the inaccuracy of results.
The Relevance of the Blood Stain Patterns and the DNA Results
Captain Joubert attended the crime scene for the detection and identification of possible blood and bloodstain patterns at 14h00 on 27 January 2015. During 27 – 30 January 2015 Captain Joubert marked the identified bloodstain patterns within the crime scene and documented the stains and patters by means of photographs and sketches with measurements. He requested Sergeant Hitchcock to document the identified bloodstains and patterns and to collect samples of the identified bloodstains. The witness made certain assumptions when compiling his report, Exhibit “DDD1”, and inter alia the following:
- All reddish/brown fluid and staining at the scene had the appearance, behaviour and context consistent with blood; and
(ii) That all the bloodstains were deposited contemporaneous (occurring at the same time) to the events surrounding the incident.
The Accused testified that he was dressed in his grey sleeping short with boxers underneath and a pair of socks.
The grey short belonging to the Accused, Exhibit 120, had multiple spatter bloodstains on the front. On the frontal aspect of the grey shorts sixty seven (67) spatter bloodstains were identified and documented. The spatter bloodstains suggest impact as the possible deposition mechanism and were probably created as a result of force applied to the blood source(s), like a wound(s). Thirty two (32) of the spatter stains belonged to RUDI, nine (9) to the Accused, five (5) to MARTIN and two (2) mixed samples respectively with TERESA and RUDI as well as TERESA, RUDI and the Accused as the possible donors (which should be only RUDI and the Accused). None of the stains originated from MARLI. The spatter bloodstains indicated full penetration of the fabric knit by the blood during deposition. Fourteen (14) transfer bloodstains were identified on the grey shorts, suggesting object(s) contaminated with blood came into contact with the grey shorts. A blood clot on the grey shorts was most likely created by contact between the blood source and grey shorts. No DNA could be extracted from the blood clot sample. Three (3) non-spatter contact stains emanated from RUDI were on the Accused’s shorts and two (2) non-spatter stains from the Accused on the frontal part of the shorts. There were also possible urine stains on the grey shorts as can be seen on photographs 182 and 183, Annexure C, Exhibit “DDD1”.
Captain Joubert’s conclusions and a summary of the bloodstains with regards to the crime scene were contained in paragraph 37, Exhibit “DDD1”. The following relevant aspects were inter alia his conclusions:
(1) There were a number of stains that were most likely made by EMS personnel based on the scene and the pictures.
(2) The bloodstain pattern suggests RUDI was dragged or moved from his bed onto and over the carpet between the two beds towards the wooden floor. The bloodstain pattern suggests RUDI was moved through the pool of blood which resulted in the creation of swipe and wipe patterns.
(3) The duvet from the Accused’ bed was removed after the blood shedding event.
(4) RUDI’s blood had time to clot before he was moved, time passed before his upper body on his bed was disturbed. The bloodstain pattern further suggests that RUDI was also stationery for a period of time on the bedroom floor as a pool of blood was created.
(5) Spatter on the frontal aspect suggest the grey short was in close proximity to RUDI and MARTIN when force was applied to the blood source of those victims. The bloodstains further suggest that the grey short was facing the blood sources when force was applied to the blood sources of the victims RUDI and MARTIN. The bloodstain documented as Exhibit “120-87” contained a blood clot, which suggest an object contaminated with clotted blood made contact with the short which resulted in the transfer of blood (see photograph 176, Annexure C, Exhibit “DDD1”). The grey short was exposed to multiple blood shedding events during the incident, taking into consideration the different DNA profiles obtained from the bloodstained samples collected from the shorts, and also the location of these bloodstains, including the transfer bloodstains.
(6) The spatter bloodstains on the white socks showed that it was in close proximity to blood sources originating from TERESA and RUDI. The spatter at the back of the white sock, suggests the wearer’s foot was positioned in a manner which exposed the area to a blood shedding event (see photograph 11, Annexure D, Exhibit “DDD1”). The pair of white socks was exposed to multiple blood shedding events during the incident, taking into consideration the different DNA profiles obtained from the blood stained samples collected from the socks, and also the location of the spatter bloodstains.
(7) There was no disturbance of bloodstains on the handle part of the axe.
With reference to the relative positions of the victims and attacker during the incident, Captain Joubert documented and testified the following:
The Accused was standing next to RUDI’s bed when the victim was attacked on his bed at point “CS24” on photographs 103, Annexure “P”, Exhibit “DDD2”. RUDI was attacked on his bed whilst lying on his stomach with his head facing the adjacent wall.
MARTIN was most probably attending to his son, RUDI, on the bed, when he was attacked by the attacker on RUDI’s bed.
The attacker was standing in the vicinity of RUDI’s bed, when MARTIN was attacked.
TERESA was most probably attacked in the doorway of the first bedroom.
MARLI sustained her injuries during the confrontation with the attacker, most likely in the same area as TERESA.
According to Captain Joubert:
(1) The bloodstains and bloodstain patterns observed did not support the sequence of events presented by the Accused in his statement;
(2) The events surrounding the knife, presented by the Accused in his statement, are inconsistent with the events identified through bloodstain pattern analysis and the law of superposition.
(3) Events pertaining to the grey duvet belonging to the Accused, marked Exhibit 138, were identified, suggesting movement and interaction with the environment before the grey duvet was in its final position.
(4) The victims were attacked in a short period of time, after which a time lapse occurred and the victim, RUDI, was moved/dragged from the bed and handled in front of the two beds in the bedroom. Thereafter the grey duvet, marked Exhibit 138, was placed/thrown adjacent the victim, RUDI.
(5) During the incident the knife and the grey duvet, were in contact, after the knife was in contact with the victim, RUDI’s, blood.
(6) No indication or evidence identified, suggesting the victim, RUDI, being mobile after sustaining his injuries.
(7) The events surrounding the confrontation, following the suspect, falling and fainting on the staircase, presented by the Accused in his statement, is inconsistent with the flow patterns identified on his chest and left arm, which also suggested minimal to no movement of the upper chest and the left arm of the Accused, after sustaining his injuries.
(8) Bloodstains and bloodstain patterns were identified in areas which were not entered by the Accused, which was inconsistent with the events/actions presented by the Accused in his statement.
(9) The position of the Accused during the events within his bedroom was inconsistent and was not supported with the bloodstains.
(10) The evidence does not support the actions/events described in the Accused’s statement. The witness indicated he could not rule out the possibility of staging. Captain Joubert explained that staging was the alteration or creation of evidence to direct the investigation away from the perpetrator.
Defence counsel argued that the Accused maintained from the outset that he was in close proximity to RUDI and MARTIN when the blood shedding events occurred; hence the blood spatter on his shorts. Counsel argued this evidence does not warrant an inference that the Accused was the attacker as the only reasonable inference. This statement by Defence counsel is incorrect; the Accused said in his statement to the police that he remained in the bathroom during the attack. Since the start of the trial the Accused’s version was that he was in the corner of the room in the vicinity of the bathroom. However, there was no spatter on the bathroom door or either side of the walls outside the bathroom, Captain Joubert testified one would have expected blood spatter in that area as blood was deposited on his shorts. During cross-examination the Accused conceded that one would expect blood spatter on the surrounding wall and door.
Captain Joubert testified that there was blood spatter mainly on the shorts and socks of the Accused; if he was in the vicinity of the spatter or in close proximity of the attacker, RUDI and MARTIN, one would have expected blood spatter on his body as well, not only on the shorts and socks, whether he was closer to the bathroom in the room or further away. Captain Joubert said it was a possibility that the Accused cleaned himself because of the blood being limited to his shorts and socks.
Defence counsel argued that the Accused had maintained from the outset that there was more than one attacker in the house that particular morning; hence the absence of MARLI’s blood on the axe and his clothes. This statement is once again not correct. A second attacker was not mentioned from the outset, neither in his statement to the police nor to Captain Steyn at the scene. The possibility of a second axe being used was only proffered during the trial, after the DNA results were known. The Accused mentioned in general terms to Ms Philander that three adults and a teenage girl had been attacked with an axe during the emergency call. The Court makes no adverse finding with regard to the information of an axe being used in the attack on MARLI due to the general terms of the statement. The Court has already dealt with this submission regarding the absence of MARLI’s blood/DNA earlier in the judgement.
Whether the blood stain pattern analysis and DNA results merely place the Accused on the scene or identify him as the attacker, it is significant that nothing in the forensic evidence categorically excludes the Accused as the attacker.
The Relevance of the Impact Marks at the Crime Scene
Captain Candice Heloise Brown is stationed at the ballistics section of the Forensics Science Laboratory in Plattekloof since 2004, for approximately 13 years. She received training in various components of ballistics. On 28 January 2015 at 09h30 she visited the crime scene to examine certain impact marks. The witness compiled a report dated 20 February 2015 which was handed in as Exhibit “YY”. The scope of the forensic examination was crime scene examination, reconstruction and scene photography.
Pertaining to the crucial question whether the axe could have been thrown to make impact mark “D” according to the Accused’s version (see paragraph 36, page 10, Exhibit “J”), Captain Brown testified as follows:
Exhibit “1” was not a throwing axe; there was actually such a sport. The axe could land on four areas, namely the butt, the head, the sharp edge or the handle. If one were to throw the axe, you would have a one quarter chance of it landing on the sharp edge or on any of the other areas. The brick behind the plastered area was exposed inside the impact mark. The impact was deep and therefore the brick was exposed. So basically the impact mark would have to move beyond the 10 to 15mm plaster area in terms of SANBS (SA building standards) to expose the brick. Any object flying through the air decelerates in velocity and speed. When taking into consideration Newton’s laws of motion, one would definitely expect with an object that has weight and flying through the air, to make such a mark landing on the sharp edge side. So the version contained in the plea explanation is possible but highly unlikely. The witness confirmed that variables play a role, ie the strength of the person, how far away the person was, etcetera.
Captain Brown based her opinion on her years of experience in the ballistic field and fitted the axe into the damage marked “D”. She did not do other practical experiments with the axe and the wall which might impact on the weight of her evidence. The Court notes that the mark in the wall is rather straight and did not create a mark with a angle of some sort. A controlled action with an axe, will probably create more straight or linear marks than throwing an axe. The appearance of the victim’s wounds, inflicted with controlled blows with the axe, present with similar straight lines. Her opinion is also supported by the evidence of Captain Joubert to the effect that the damage above the staircase was probably caused by a controlled action and not throwing the axe against the wall. The bloodstain pattern at point “B24”, Cast-off pattern with Cessation Cast-off did not support the Accused’s version of throwing the axe. The pattern identified was created by an object under control of the handler. Captain Joubert expected a longer and higher casting off of blood stains against the wall in case of an uncontrolled impact and throwing of the axe, reaching as high as the ceiling. It is regrettable that none of the experts did any experiments to determine whether the axe had been thrown or not. However, Captain Joubert testified that he asked about the position of the Accused after the attacker had fled, but he was informed that the representative of the Accused did not provide co-operation. He did similar experiments with different weapons in the past. The Accused was also not sure where he stood when he allegedly threw the axe which makes an accurate scientific process more complicated.
No expert evidence to the contrary was presented by the Defence in this regard although it was put to the witness that the Defence ballistic expert simulated the axe throwing. It was submitted on behalf of the Accused that the quality of the expert evidence was so poor in the absence of following a scientific process and doing experiments, that it was not necessary to present any countervailing evidence, other than the Accused’s own direct evidence.
Shoe Prints at the Crime Scene
Warrant Officer Hitchcock identified certain relevant bloody shoe prints from several prints inside and outside the house. Captain Danie van der Westhuizen, a forensic field worker and shoe print analyst, stationed at the Provincial Crime Scene Investigation Unit, guided and advised Warrant Officer Hitchcock and other officials how to document the shoe prints and what would be relevant. He also identified the different patterns of shoe prints when walking through the crime scene. Captain van der Westhuizen looked at the class and characteristics of the shoes and prints found at the crime scene. He matched the patterns and sizes of the shoes. Thereafter he sought to identify any damage on the sole of the shoe. When the shoe came into contact with the surface, it would leave certain characteristics.
The uncontested testimony of Sergeant Kleynhans was that there were no bloody footprints on the stairs upon his arrival as can be seen on photographs 124 and 125, Exhibit “A”.
Christiaan Koegenberg confirmed that the prints on the scene had to be the bloody footsteps of the emergency personnel, as can be seen in the photo album, Exhibit “A”, when they were assisting the injured MARLI.
Fingerprints Found at the Crime Scene
Sergeant Jonathan Oliphant from the Local Criminal Record Centre in Beaufort-West, found fifty three (53) finger prints in total. The witness distinguished between usable, unusable and negative fingerprints. In case of unusable prints all seven points required by the court to identify a print, were not available. One could still identify a person though. He compared the usable prints with the known prints furnished to him. He had the prints of the Accused and the rest of family as well as from the domestic workers and the gardener, Tulani Gurya. A copy of correspondence between the Investigation team and the LCRC containing an Elimination Report was handed in as Exhibit “MM”. On page 2 of the report the names of fifteen persons who had been arrested for crimes committed at De Zalze Estate appeared. None of the fifteen persons could be linked with the prints on the crime scene. Prints of James Reade-Jahn were found on the boot of one of the motor vehicles. No prints or hit of a possible suspect were found.
Of significance is the fact that the unidentified prints originated from several persons and not just one person, which possibly could explain the number of unidentified prints. In this matter the alleged intruder wore cloves, so one would not expect to find his fingerprints at the scene. If the intruder had indeed been accompanied by a second person, such a person probably would have worn gloves as well, taking into consideration the dress code modus operandi of the perpetrators.
Sergeant Oliphant collected the axe and the knife from the scene and examined it for finger prints. No finger prints could be found on the axe. It was possible to get prints on wood depending on the surface. It is not unusual not to find finger prints on wood. The tests performed to identify finger prints had no affect on other further forensic tests.
The witness testified that three prints were found on the knife, of which two were unidentifiable. The right thumb print of the Accused was found on the blade, 5 – 6 cm from the tip of the knife. The print pointed towards the handle of the knife; if the knife point points down, the thumb print pointed up. An enlargement of the blade of the knife was handed in as Exhibit “MM1”. Two smeared unidentified prints were found. The identifiable print on the tip of the blade belonging to the Accused, was actually a double print and it was indicated with circles by the witness.
In this matter the Accused admitted from the outset that he had handled the knife after an altercation with an alleged intruder. The findings of the expert pertaining to the prints on the knife are uncontested. Therefore the issue of the reliability of the prints, even in the absence of an explanation with regard to the points of similarity by the expert, can be accepted. The evidential value of the evidence needs to be approached with caution because of the lack of the explanation of the age of the identifiable and unidentifiable prints.
The Accused was asked to explain how the knife ended up partially under RUDI’s bed. The Accused offered two explanations, namely that the knife could have bounced there when he dropped it, or it could have been pushed there by RUDI when he was moving around. In the light of the probabilities the explanation given by the Accused does seem to be possible, but not necessarily plausible.
Professor Dempers and Dr Tiemensma were of the opinion that it was unlikely that the knife would have been stuck in the Accused’s body if the Accused was moving around.
There are far too many possibilities and insufficient evidence for the Court to make an inference regarding the fingerprints and the position of the knife.
The bottom line is that it is unlikely that the intruder would have left finger prints with gloved hands. Only the Accused’s thumb print was on the knife and RUDI’s DNA. If there was no intruder, the knife could possibly have been used in a fight by members of the van Breda family amongst themselves at some stage during the course of the evening or night or simply by the Accused, inter alia to stage his wounds and the scene.
The Number of Intruders
It is the Accused’s version that more than one intruder entered the van Breda residence that particular night. The issue of the number of intruders, the description of the intruder(s) and the motive of a possible intruder needs to be scrutinised.
Janine Philander testified that the Accused mentioned one attacker to her but he did say that “they” (with reference to the perpetrators) ran away after the attack.
The Accused alleged in his plea explanation that he heard angry voices of more than one person somewhere else in the house after the attacker had fled out of the bedroom on the first floor.
The Accused testified in his evidence in chief that he did mention to Colonel Beneke that there was more than one intruder. When asked by his counsel why he did not tell Sergeant Malan to rectify his statement before signing it , the Accused explained he did not feel like it after retelling the story of a very traumatic experience several times at that point. The police were still gathering information to catch the perpetrators at that point. The Accused seems to be an intelligent person and must have realised the importance of information about the offenders to pursue them. During cross-examination the Accused advanced another reason for the absence of this information in his statement. He said he specifically mentioned the second attacker or intruder but did not notice the omission about the second intruder when he read and signed the statement. He spoke at length about the two intruders and said he did not know why the police left it out. The Accused said he was surprised it was not in his statement. He did tell the police about the second attacker or intruder, so he accepted they knew about it.
Description of the Attacker(s)
According to his plea explanation the Accused thought that the attacker was a Black person (see paragraph 52, Exhibit “J”). The Accused further alleged that the attacker was dressed in dark clothes, he wore gloves and a balaclava-type mask (see paragraph 25, Exhibit “J”). In his statement to the police the Accused described the attacker as a strong, well built person and 1,86 meters tall. The Accused stated the attacker wore dark jeans, a black jumbo jersey, black gloves and a homemade dark grey mask. He said he would recognised the eyes and voice of the attacker (see paragraph 11, Exhibit “SS”). He gave a similar description of the attacker’s clothing during his testimony, except for the jeans.
During cross-examination the Accused testified that he thought it was a Black man because he noticed a very deep contrast between the whites of the attacker’s his eyes and the skin around his eyes, in other words, he based it on the skin colouring around the attacker’s eyes. The Accused testified Black could mean Coloured as well, as opposed to White, because the word Coloured is not used overseas. When it was pointed out by State counsel that some White people are also rather dark skinned, the Accused agreed. When asked why he did not tell the police that he had seen too little of the attacker’s face or features to determine his race, the Accused responded that he actually did. He said he was told to choose a race despite being unsure because Colonel Beneke was unhappy with his description. Later he said it was not strictly true that he could identify the attacker on his eyes and voice. However, he told the police that those are the only two things that he possibly could use to identify the intruders.
During cross-examination the Accused conceded that he gave a very stereotype description of the attacker who executed the attack and that it boiled down to an unknown Black man wearing a balaclava and gloves. The Accused agreed with the statement of his counsel that no one would be able to trace the attacker based on his description. The Accused explained he did not have a lot to go on.
The Accused as a Witness and his Version
The Accused’s version at the scene
Captain Nicholas Steyn from the Detective branch in Stellenbosch, was tasked to establish the Accused’s version of the events. The Accused was not a suspect at the time and treated as a victim according to Sergeant Kleynhans, Dr Albertse and Sergeant Malan. The Accused told his version of the events whilst he was sitting in the ambulance at the crime scene and without the witness questioning him. The Accused communicated with the witness in English. He told the witness that he had been in the toilet in the early hours of the morning when he heard noises. He looked through a gap in the toilet door when he saw someone attacking his brother Rudy. The Accused said that he had shouted and then his father came into the room and the suspect attacked his father. His mother and sister came in and the suspect attacked them too. During cross-examination Captain Steyn testified that it was possible that he misunderstood the Accused to the effect that the Accused’s mother and sister were attacked outside the bedroom and not inside the bedroom. The Accused then confronted the suspect and took the axe from him. The suspect stabbed the Accused in his side with a knife. He chased the suspect from the room and down the stairs. He threw the axe at the suspect but missed and hit the wall. The suspect ran out the back door and the Accused returned to the stairs when he saw his mother and sister lying on the landing and then he fainted. Once he regained consciousness he googled the police emergency number because he did not have the number on him. He contacted the police. Captain Steyn conceded that it was possible that the Accused said he googled an emergency number and not a police number. The Accused said he could not remember how long he was unconscious but when he regained consciousness, he googled.
Trial within a Trial
The trial within a trial relates to the admissibility of a statement made by the Accused prior to his arrest. It was made to Sergeant Clinton Malan (Malan).
The admissibility of the said statement was contested on the basis that the Accused’s constitutional rights were violated in that he was a suspect and, as such, he enjoyed the protection of Section 35 of the Constitution, or at the very least, the Judges Rules.
Counsel for the Accused suggested that the manner in which the Accused was treated prior to the taking of the statement supports the notion that he was a suspect at the time the statement was made. The State argues that the Accused was not a suspect at the time.
The evidence at the trial within a trial was restricted to that of Malan and the only defence witness, a Mr Andre Du Toit (Du Toit). It was further agreed between the parties that the evidence of Dr Van Zyl and Albertse be incorporated in the trial within a trial.
The onus is on the State to prove the admissibility of the statement which the Defence later handed up in evidence as Exhibit “SS”.
The content of the statement is essentially the same as the Accused’s version in his plea explanation. It is not a confession and does not contain any admissions. It is a witness statement which describes the sequence of events of what transpired at the time of the commission of the crimes.
At the material time the Accused was one of the two surviving members of the family but the only person in a position to assist the police as to who had attacked him and his family that night.
At the time there was no incriminating evidence against the Accused and, quite patently, when making the statement he was neither an arrested, detained nor an accused person.
The contents of the statement are not, in effect, disputed. The Accused does not suggest the statement was taken under duress or made involuntarily. It seems that he fully co-operated with the police. The statement itself, Exhibit “SS”, was ostensibly handed up in evidence for the purpose of attacking Malan’s credibility. The principal attack levelled against him was that he did not record the statement using the words of the Accused. The Accused was unhappy with the spelling mistakes and grammatical errors. Malan’s mother tongue is Afrikaans and it seems that he typed what he understood the Accused, an English speaking person, was saying.
It was not suggested by Defence counsel that Malan did not record the version given by the Accused. The language and grammatical errors do not in any way affect Malan’s credibility, either adversely or at all. When signing the statement the Accused did not object to the details or content of the statement. In other words, it was not alleged that the content of the statement does not emanate from the Accused.
There was the suggestion, put to Malan that the Accused was told by Colonel Beneke that he did not believe this “bullshit” story. If that is true, Colonel Beneke, at best started the interview with a high degree of insensitivity. It is unlikely that Colonel Beneke could have come to this conclusion so shortly after attending the crime scene. In any event, the allegation is not supported by any evidence and, of course, the Accused did not testify to this effect.
With regard to determining whether the Accused was a suspect or not. The only really relevant evidence is that of Malan.
Du Toit the sole witness for the Accused, could not be of any assistance to the Court in deciding this issue. Du Toit, in fact, does not take the matter any further other than confirming by inference that the Accused was allowed contact with his family and friends, received items from them, and freely allowed to leave. Nothing stated to him by the police officials implied that the Accused was detained or a suspect.
Malan was criticised by Defence counsel for apparently inconsequential matters, such as inaccurate or vague entries in his pocket book, details of time and other related matters. Malan was not involved in the investigation of this matter, save for accompanying the Accused to the District Surgeon and the taking of the statement. He would not have had an undue interest in the matter and, in my view, he was a good and reliable witness in respect of the material aspects on which he testified.
Malan’s testimony is referred to in the following paragraph:
The Accused had been a victim who had survived an attack on his family, had been treated in an ambulance and then taken to Dr Albertse to record his injuries, that is as a victim of crime. The latter is in fact standard police practice.
The police were eager to take his statement as he was at that stage the only source of information regarding possible suspects in what was quite obviously a very serious violent crime.
The questioning of the Accused, and his statement, were to determine what precisely had happened in order for the police to trace the suspects. The Accused did not indicate that he was unwilling to talk to the police and there was no evidence incriminating the Accused in the commission of the crimes or which placed him in a position to provide an explanation.
The Accused was calm and able to give a coherent account of how the family was attacked.
The Accused read the electronic version and was satisfied with what had been recorded.
The Accused was thereafter free to leave with his family.
The Accused failed to testify or lead any evidence to gainsay what Malan had stated during his testimony.
It was reasonable for the police to seek to finalise the formalities and obtain information about the events at the earliest possible opportunity from the only available eyewitness.
There was no onus on the Accused to testify or prove anything. However, his failure to testify is a factor to be taken into account as there is no evidence to rebut the material aspects of the State’s case. There is no evidence before it for the Court to find that the Accused was viewed as a suspect at the time when he was initially interviewed and the statement recorded.
In the circumstances the Court finds that the statement made by the Accused was as a witness and not as a suspect.
In any event, the degree of prejudice, if at all, against the Accused in admitting the evidence is negligible in that most of the evidence is already before the Court either in the plea explanation or in the verbal statement given by the Accused on the scene to Captain Steyn. Moreover, it does not contain either admissions or a confession.
In the light of the peculiar circumstances of this case, public interest would dictate the admission of the evidence as the police were faced with a serious violent crime and the Accused was the only source of information which could lead to the culprits being traced.
The statement marked “SS” was accordingly admitted into evidence.
The Discrepancies between the Plea Explanation of the Accused, his Statement to the Police and his Testimony in Court
It was argued that the Accused’s version remains in essence the same but there seem to be differences on some aspects. Defence counsel argued that the Accused was in a post-ictal state when he deposed to his statement. This possibility is not based on reliable evidence, but on an uncertain back dated diagnosis by Dr Butler, without examining the Accused at the time or performing tests to confirm his diagnosis. Furthermore it was submitted that the few discrepancies between the Accused’s police statement and his later versions in his plea explanation and evidence in Court can be explained and accounted for by his physical and mental state, compounded by the method and manner in which his statement was taken down by the police. Therefore the statement cannot be used as a reliable comparative device for the purpose of incriminating the Accused.
State counsel submitted that at the time of deposing to Exhibit “SS”, the Accused had no insight into the forensic evidence, that being the forensic pathology reports, the DNA results, the blood stain analysis and the crime scene investigations.
The Accused testified that the police did not deprive him of food intentionally and he was not starving at the time. He did eat a sandwich and flavoured yoghurt when he was brought food. The police also did not intentionally deprive him from sleep. He said he was willing to work with the police and gave them as much as possible information to catch the killer. He absolutely wanted to work with the police. The Accused testified that at the time he did not think that the police actions were irregular. He testified that certain aspects in Exhibit “SS” were incorrect but said that he signed it because he could go home. The Accused said he was not thinking clearly at the time.
If he had legal advice, he would have understood the situation he was in better. He said he would not have changed anything of what he had said to the police. The document or outcome would just have been more accurate. The Accused said the statement is not his version given to the police; the wording in Exhibit “SS” was inaccurate. The Accused said he was not suggesting that the police made up lies but it was not the words he used. He said the wording was wrong and from that unfair conclusions could be drawn. If his Attorney was there she could have worded the statement correctly. He said his complaint was about the wording, not the content of the statement. The Accused conceded the information contained in the statement did emanate from him in one way or another.
During his testimony the Accused conceded that there were discrepancies between his plea-explanation (Exhibit “J”) andhis statement to the police dated 27 January 2015 at 15h52 (Exhibit “SS”).
During cross-examination the Accused conceded signing an incorrect statement but said if he knew it was going to be used in court, he would not have signed it. There should be no distinction in the mind of the deponent between a statement to the police and court proceedings, as far as telling the truth is concerned. In effect the Accused conceded that he was prepared to compromise the truth under oath for reasons of his own. Furthermore, the Accused said he would not have changed anything of what he had said to the police, only the document would have been more accurate. He said he was not suggesting that the police put words in his mouth or that they made up lies, he was merely suggesting that he did not use the words in the statement and cannot be held accountable for the exact wording of the statement. It is true that police statements are not perfect; all depends on the essence of the statement. Apart from spelling and grammar mistakes, the police had to be aware of the importance of the accuracy of the contents of the statement of probably the only eye witness. It is not a matter of holding the Accused accountable for the exact wording but more so, important factual inconsistencies in the sequence of events.
State counsel canvassed the statement with the Accused.
In his plea explanation the Accused said that MARTIN, RUDI and he watched television while TERESA prepared dinner. According to his statement MARTIN and the Accused drank two glasses of red wine each and RUDI went for a run outside. When confronted with the contradiction, the Accused said it was simply not his words, he was never sure of whether RUDI went for a run. However, during his evidence in chief the Accused testified that RUDI went for a run on the estate while denying during cross-examination having said so to the police. Therefore there is not only a contradiction between his statement and plea-examination, the Accused also contradicted himself during his testimony.
In his statement the Accused said the family had dinner at 19h15 in the dining room and they finished dinner at about 20h00. The Accused did not mention times in his plea explanation. He testified that he could not be sure of the time they had dinner, specified as 19h15 to 20h00. He said it was not given by him as definite times, it was approximate times. The Accused could not recall what time they finished dinner. They usually enjoyed dinner at about 19h30 and it would last for about thirty (30) to forty five (45) minutes.
After dinner MARTIN, RUDI, MARLI and the Accused watched television according to his statement. In his plea explanation the Accused said that MARTIN, RUDI and he watched Star Trek 2 after dinner. During his testimony the Accused denied having included MARLI; he told the police which family members watched television on a regular evening. The State submitted the omission to mention in his statement that he specifically watched the movie Star Trek 2 that evening, was later adapted to explain the argument that Ms Op’t Hoff overheard.
The Accused testified his father did some work at the dining room table after dinner and RUDI and himself watched television on the evening of 26 January 2015. The Accused testified that he later watched Star Trek 2 on their new hi fi system together with MARTIN and RUDI. He could not recall what time they started watching and said MARTIN first did some work before they watched the film. Adv Galloway confronted the Accused with the fact that he did not mention it in his statement or plea explanation that his father worked on a laptop at the dining room table after dinner.
State counsel suggested it was mentioned in his testimony to fit in with the time line between dinner and watching television. Furthermore, it was submitted that this was done to fit in with the time frame in accordance with Ms Op’t Hoff’s evidence. The Accused said his father working on his laptop was not important at the time of drawing up the plea explanation. He only found it relevant to mention this new piece of evidence during his testimony. The Accused said he was never sure exactly what time they started watching the movie. During cross-examination of Ms Op’t Hoff it was suggested by Defence Counsel that the movie was two hours long and that was what Ms Op’t Hoff had heard between 22h00 and midnight the night of the murders. The Accused conceded that if they watched a movie after dinner at about 20h00, his version would not make sense, without the newly introduced evidence, to the effect that Ms Op’t Hoff could have heard the movie soundtrack only at 22h00 and not at 20h00.
In his plea explanation the impression was created that MARTIN, RUDI and the Accused went to bed after the movie at the same time which would have been approximately midnight. In his statement the Accused said MARLI and his father went to bed at about 21h00, then RUDI and himself went to bed two hours later at 23h00.
The Accused testified he could not recall where he was physically when he shouted for help or making a noise after he had exited the bathroom and whilst RUDI was being attacked. The Accused said he was inferring that he was between the bottom end of his bed and the bathroom door. He also could not recall whether he remained stationary. In his police statement the Accused said that he opened the bathroom door slightly and remained in the bathroom, too afraid to go out. In his statement the Accused said that he went out of the bathroom after he had heard his mother and the attacker had left the room. In his plea explanation the Accused created the same impression. In paragraph 24 of his plea explanation the Accused said he stood frozen and could not recall whether he remained in the same position, but that he did open the bathroom door; the Accused never said that he went out of the bathroom before the attacker left the room for the first time. The Accused responded that he did exit the bathroom. It was not his intention to create any other impression.
The Accused mentioned one intruder only in his statement to the police. In his plea-explanation the Accused stated that he recalled hearing what sounded like angry voices of more than one person, somewhere else in the house after the attacker had fled from the bedroom.
In his police statement the Accused said his father jumped on the attacker whereafter the attacker assaulted his father with the axe. His father collapsed in the room where he had been attacked. In his plea-explanation the Accused said upon entering the room, his father moved towards and onto the bed, over RUDI, towards the attacker, who was on the opposite side of the bed. As his father was lunging towards the attacker, his father was struck with the axe and went limp on the bed. His did not see his father move again.
The Accused struggled to explain his father’s position during his testimony. Initially he testified that his father was on his way over the bed. He testified his father came onto RUDI’s bed as if he was going to make a rugby tackle on the attacker. The Accused said his father was trying to attack the assailant and probably trying to protect RUDI. He denied using the words in the police statement but said it was the gist of what happened. Later during cross-examination the Accused testified that his father actually never moved over RUDI; he was struck before he was able to carry out that motion and was heading there.
According to his plea explanation, the attacker was laughing whilst he attacked MARTIN. The attacker was laughing when he came at the Accused and was almost unconcerned about his presence. The statement is silent in this regard. The Accused testified that he distinctly remembered hearing that the attacker laughed during the attack on his father. Before the scuffle with the attacker, the attacker walked slowly towards the Accused and laughed again. He testified that the attacker was also laughing when attacking RUDI after he had attacked his father. The Accused described it as a high pitched giggle. The attacker struck RUDI again and giggled and the Accused got the impression that the attacker had fun murdering people.
The Accused said in his statement that he could hear that the attacker was busy assaulting his mother in the passage. In his plea explanation the Accused said he could not recall whether he heard any sounds of an attack on his mother outside his room. The Accused testified he did not hear sounds of an attack outside the boys’ room. He testified that it did not really make sense to him. He could not see what happened to his mother outside the bedroom and he could not recall hearing anything.
According to his plea explanation, the attacker came at the Accused again after disarming him and grabbing the right forearm of the hand in which the Accused was holding the axe. At the same time, the attacker lifted his right hand and then for the first time the Accused saw he had a knife in his right hand. According to the Accused he did not know where the attacker got the knife from.
In his statement the sequence of events seemed to be different regarding the time that the Accused observed the knife. When the Accused managed to take the axe from the attacker, he actually saw the attacker pulling out a knife, and then the Accused grabbed the attacker’s right arm with his left hand. When confronted with the discrepancy, the Accused testified he did not say at the police station from where the attacker got the knife.
During his testimony a third version was given by the Accused. The Accused said the attacker recovered fairly quickly after being disarmed, he stood up and came back at the Accused with a knife in his right hand, in other words, he saw the knife in the attacker’s hand when being approached by the attacker. He did not see where the knife came from.
In his plea explanation the Accused described the fight between the attacker and him, and inter alia alleged that the attacker cut, slashed and stabbed at his chest and left arm; no mention was made of his throat. The Accused struck the right shoulder of the attacker with the axe in an attempt to make the attacker let go of the knife. The attacker stabbed the Accused with the knife on his left side, almost at the same time that the Accused struck the attacker with the axe.
In his statement the Accused said the attacker attacked him again, the Accused pulled the attacker to the side of his body and the attacker stabbed the Accused on the left side of his body. Then he hit the attacker with the axe. In the statement no mention was made of the cutting, slashing and stabbing at the chest and arm of the Accused, or his throat.
State counsel submitted that it was rather unusual that the Accused could choreograph the exact details in respect of the fight between him and the attacker. However, the Accused was unable to give any information on the movement of feet during the altercation. The Court was referred to Dr Tiemensma’s quotation from the text book, Knights Forensic Pathology, page 154 regarding the tendency to visualise a fight as a static confrontation and in an attempt to reconstruct events, the assailant merely moved his arms as if the two participants were standing still. This is an unrealistic interpretation as all fights are dynamic with constant movement of the bodies and limbs of both parties. Th State argued that the detailed demonstration was to fit in with the evidence of Dr Tiemensma and Dr Dempers regarding the self-inflicted injuries.
The Accused did not mention in Exhibit “SS” that he heard RUDI making gurgling sounds and saw him moving on his bed after the attacker had left the room, as he testified. In paragraph 34, 39 and 40 of his plea-explanation the Accused stated that he saw RUDI moving around on his bed rather violently before he followed the attacker and heard RUDI making gurgling sounds even after regaining consciousness on the stairs. The Accused also makes no mention of this during the emergency call. State counsel argued that this was an afterthought to explain RUDI’s position and movement. The Accused denied adding this information in his plea-explanation to explain Captain Joubert’s opinion that RUDI was handled on the scene.
In his plea explanation and testimony the Accused said that he looked at the emergency numbers on the fridge door in the kitchen, but the numbers did not appear to him to be of any assistance. The statement to the police is silent in this regard.
The Accused testified that he considered the numbers on the fridge and decided that he could do more by other means. Calling the security would have resulted in just doing more explaining. He did not call the 24 hour emergency number because he thought he would be better off speaking directly to the people that were going to help. The Accused confirmed that there was a hospital number and medical doctor or general practitioner with a 24 hour emergency number on the list. The Accused testified that the headings on the list were even in different colours so that one could scan quickly through it. When being confronted with the fact that there were two 24 hour emergency numbers on the list, the Accused said he thought that he could get an ambulance quicker. The Accused agreed that the security could have rushed to his assistance whilst the ambulance had to come from a distance, in other words there were people closer that could have actually helped.
The Accused’s Testimony Regarding his Behaviour and other Aspects during the Events on the Night of the Murders
The family dog, Sasha, allegedly made no noise to warn the members of the household when the intruders entered the house. The Accused gave a comprehensive plea explanation but never mentioned the dog barking prior to the attack during that particular night. No statements were made on behalf of the Accused that the dog barked and woke up some of the family members when the alleged intruders had entered the house prior to the attack.
The Accused testified that he could not recall hearing Sasha barking before losing consciousness. According to the Accused it would be probable for her not to bark when there were strangers in the house in the middle of the night. She would bark at sounds that she identified as something exciting for her.
The Accused testified that Sasha was sickly at the time. She was on medication for one week out of a month and was disabled whilst on medication. The Accused testified that Sasha would not really bark during that time. According to the Accused Sasha was not able to go up and down the stairs by herself so they had to carry her up and down the stairs. He then testified that she was not that immobile that she could not get around and get up the stairs; she just struggled. The Accused said he could not recall carrying Sasha upstairs to the room the evening before the murders, so he presumed she slept downstairs. Surprisingly the Accused was not sure whether Sasha was on medication that particular night. The incident happened in the beginning of the week so Sasha’s behaviour would probably have been notably different if she had received her medication that particular Monday.
The Accused testified that Sasha was completely deaf as well; it is not clear whether it was in general or during the time that she took her medication. It does not make sense that she would hear the doorbell, the phone ringing and the metal from the side gate and bark at that if she was completely deaf in general.
The Accused testified the first thing he registered after he regained consciousness, was seeing his mother and MARLI at the top landing. Thereafter the Accused testified that the first thing that he recalled from the morning after the murders, was hearing Sasha barking at the phone that was ringing.
Ms Munqongani testified the dog would bark for a short time upon her arrival but it did not make a lot of noise. The dog roamed the house freely. According to the Accused Sasha would have barked at Precious, whom she knew, and not at strange people being in the house in the middle of the night. She also would not have barked at strange noises outside but she got very excited when the phone and the doorbell rang.
It seems to be unlikely that Sasha would not have barked at intruders in the middle of the night as she barked upon Precious’ arrival and at the metal sound from the side gate, if the intruder came via that route. It is also unlikely that she would not have barked during the attack upstairs as it could not have been a quiet event in which her owners were involved.
The Court dealt with the concession by the Accused that it would be strange that the persons who planned to enter the house and attack the family, came unarmed or armed inadequately that night. The Accused found it strange that the one person who went upstairs was also incidentally the same person was armed with both the knife and the axe that came from the house.
According to the Accused, the attacker appeared to be unconcerned about his presence in the room. The Accused testified that the attacker had to be aware of his presence. Not only did the attacker remain with his back turned to the Accused whilst brutally assaulting the other two male members of the family, he also went out of the room to attend to a female person outside the room first. The Accused is a tall, well built person with an appearance of being physically strong. By leaving the Accused unattended like that he opened himself to the risk of being overpowered. The attacker’s behaviour seems to be peculiar. It is also peculiar that the attacker did not shout for assistance to the other intruder(s) when he struggled with the Accused or when he was disarmed of the axe. Furthermore it is peculiar that the attacker would approach the Accused with a knife after being disarmed of the axe, whilst the Accused was armed with an axe.
The Accused was too scared to help any member of his family and only had an altercation with the intruder when he was approached by the intruder. Even when his father entered the room and before MARTIN was incapacitated, the Accused did nothing to help his father to overpower the attacker in a relatively small room. Despite his fear that prevented him from helping his family, he was brave enough to follow the intruder(s), when outside the house.
RUDI’s father had to have a clear view of the attacker from the entrance of the room (see Exhibit “A187”). The Accused agreed that his father could have gone around the bed to possibly disarm the attacker and save his entire family. The Accused admitted that it might have also given him the courage and opportunity to help his father overpowering the attacker. Instead MARTIN opted to fall over RUDI to protect him and put himself at risk to be killed as an easy target and leave the rest of his family behind with an armed intruder in the house. If follows logically that MARTIN’s actions would be understandable if the attacker was known to him and he did not expect to be attacked too. If the attacker was unknown to him it follows logically that a person would rather attempt to disarm such an attacker to stop an ongoing attack and prevent further attacks on the other occupants of the house.
The Accused stated in his plea-explanation that he heard angry voices somewhere else in the house after the attacker fled from the room (see paragraph 34, Exhibit “J”). In his evidence in chief he testified that he heard the voices immediately after the attacker fled from the room. It seems strange that the same scared person would at that stage, just after realising there were actually more intruders in the house, bravely chase after the intruder(s), even if he was armed with the axe. At that stage he was uncertain as to the number of other intruders inside the house and whether and how they were armed. Furthermore, the Accused disarmed himself by throwing the axe after the attacker. He said hearing the voices made him very unsure as to what was going on. The Accused testified that he did not know what his intention or motivation was when he followed the attacker. He witnessed what at least one of the intruders was capable of, but still, he testified, he followed the attacker as it was “pretty much of an effort to flush them (the intruders) out of the house or something”.
The Accused left the kitchen door open without locking it when he went back into the house. Sergeant Kleynhans found the back door open upon his arrival, whether it was wide open or slightly open. It is strange that the Accused did not secure the house as far as possible by at least locking the back door as the criminals were at large, with at least one of them being a ruthless killer. The Accused in fact said in his statement to the police that he went back inside the house because he was afraid to follow the assailant, and did not know what the assailant had on him (see paragraph 8, Exhibit “SS”). Furthermore, it is odd that such a ruthless killer ran away together with at least one other perpetrator. Despite the fact that he had been disarmed, there were lots of other knives in the kitchen drawer. It probably would have been easy for (at least) two perpetrators to overpower the Accused and kill him too. It seems odd that the killer would wipe out an entire family and leave one person.
The Accused phoned the emergency services from the cordless landline phone. The Accused did not check on his family during that time as he felt he did the most he could. He thought that he did not have the physical capacity to help his family at that point. The duration of the emergency call was exceptionally long. It is strange that the Accused did not attempt to stop the blood flow from, for instance MARLI’s wounds. Instead he appeared to be content to have this long conversation whilst every second could be important to save the lives of his family. The Accused testified that he did not help or console his family members because he had been taught a bystander could do more damage than good. He also did not think one of the neighbours could help because they were not medical professionals. He conceded that he could have simply sat with his family members to console them or made them more comfortable even if they were in their dying moments. The Accused displayed a peculiar lack of empathy towards the victims during the incident. Instead he opted to phone his girlfriend several times, albeit unsuccessfully.
The Court finds that no credible evidence exists to the effect that an intruder entered the estate and the van Breda residence the night of the murders. Taking into account the type of weapon, the number and nature of the injuries, the perpetrator had to have the intention to kill the victims in the form of dolus directus unless otherwise indicated. The Court has no reason to reject the evidence of the State witnesses, after weighing the merits and demerits of their evidence. Their versions corroborated each other in material aspects and are, in the Court’s view, reliable.
The Accused was singularly unimpressive as a witness. Initially he appeared confident during his, quite apparently, well-rehearsed evidence-in-chief but was more uncomfortable during cross-examination. His answers were vague on difficult issues whereas he gave a detailed version on other aspects. He tended to adjust his answers very subtly and contradicted himself in the process. His standard answer to difficult questions implicating him as the perpetrator, amounted often to uninformative answers like “I should have” without explaining the issue at hand, sensibly and adequately.
Even if the Accused experienced a possible generalized tonic-clonic epileptic seizure or other type of seizure when losing consciousness on the stairs, he was fully conscious and responsible for his actions the period before the possible seizure happened and therefore he would have known what he was doing. It was in any event not the Defence case that the Accused lacked criminal capacity to commit the crimes or failed to appreciate the wrongfulness of his actions.
In conclusion, State Counsel argued that all the possibilities advanced by the Defence, ought not to be elevated to fact. Although anything is possible in the realm of ordinary human experience, the following objective facts establish that the Accused was the perpetrator of the crimes as the only reasonable inference:
(1) The victims lived in a security Estate with no evidence of any unlawful entry to the Estate at the time of the incident;
(2) Though not impenetrable, a reasonably high degree of skill, knowledge of the layout of the Estate and its security system and, of course, some expertise in planning was required to unlawfully enter the premises;
(3) Fortuitous unlawful entry was most unlikely;
(4) No evidence typical of a house robbery or break in, showing any intruder(s) having been inside the house, is evident;
(5) Four of the five members of a family were found brutally attacked in a similar fashion and left (for) dead;
(6) The family members were all in very close proximity in the sleeping quarters of the house;
(7) The Accused was left standing, having lived through the events;
(8) The Accused presented with injuries supposedly inflicted by the same attacker during the same incident and in execution of the same intent, yet markedly different in nature and extent to that of the rest of the family;
(9) The evidence conclusively establishes that some, if not all of his injuries, were self-inflicted. The evidence of Dr Tiemensma and Professor Dempers in this regard stands uncontradicted despite the Accused having had access to several medical experts;
(10) The version the Accused provided of how the incident occurred, is inconsistent with the objective evidence found on the scene;
(11) The Accused amended material aspects of his version upon becoming aware of the irreconcilability of his version with material aspects of the evidence.
Each piece of evidence on its own might not be enough to establish the guilt of the Accused but the cumulative effect of all the pieces concludes the puzzle. Independent circumstances point to the same conclusion. This leads to only one reasonable inference. This is true even if the Court is to ignore the DNA evidence or the statement the Accused made to the police.
With regard to Count 5 the alleged staging of the scene by the Accused by inflicting injuries to his person and hitting the axe into the wall above the staircase, the Court finds that the Accused had sufficient time to tamper with the scene and thus portray him to be a victim.
The Accused was the only person who survived a brutal encounter with minor injuries. He had intimate knowledge of the events. The Court has no doubt that the injuries to the arm and chest of the Accused, were self-inflicted injuries for the compelling reasons advanced by Dr Tiemensma and Prof Dempers. Except for the Accused’s unconvincing testimony nothing gainsays the evidence regarding the self-inflicted injuries. The Court has no reason to reject or not to accept the evidence of the expert witnesses. It is not necessary for the Court to embark on speculation as to whether the larger stab wound to the Accused’s abdomen was self-inflicted or not.
It is not necessary for the Court to make a finding with regard to the evidence of Captain Brown and Captain Joubert that the damage to the wall above the staircase was caused by the axe with a controlled action and that the axe was not thrown as alleged by the Accused. The Accused admitted that he handled the axe at that stage and it was admitted by both Counsel for the State and the Defence that the mark was caused by the axe. The Accused admitted that he caused the mark with the axe. No evidence exists that any of the victims was attacked on the first landing. In the absence of an intruder, the only reasonable inference is that he wanted to mislead the police and Court by fabricating the version that he threw the axe at a fleeing intruder, whether the Accused threw the axe at the wall because he wanted to stage the scene, or whether he staged the scene with a controlled action.
Subsequent to the commission of the crimes, the Accused intentionally inflicted injuries upon himself and told the police that the victims and he were attacked by an intruder in order to mislead the police as to the true identity of the perpetrator. Furthermore the Accused intentionally wanted to mislead the police and Court for the very same purpose as the reason for the axe being thrown or hit against the wall. The Accused deliberately committed positive acts of obstruction and supplied the police with false information that the police acted upon by launching a search for the alleged intruder. He must have known that the allegations were false, and must have been aware of the fact that it might interfere with judicial proceedings which were to take place in the future or would at least hamper or forestall the investigation of the crimes.
After carefully considering all the evidence, the result is inescapable. It is the only possible inference.
In the premises:
COUNT ONE – the MURDER of RUDI VAN BREDA – the Accused is found GUILTY;
COUNT TWO – the MURDER of MARTIN VAN BREDA – the Accused is found GUILTY;
COUNT THREE – the MURDER of TERESA VAN BREDA – the Accused is found GUILTY;
COUNT FOUR – the ATTEMPTED MURDER of MARLI VAN BREDA – the Accused is found GUILTY;
COUNT FIVE – DEFEATING OR OBSTRUCTING THE ADMINISTRATION OF JUSTICE – the Accused is found GUILTY.