S v Kalmeyer (CC44/2020) [2024] ZAWCHC 308 (28 February 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Western Cape High Court, Cape Town South Africa: Western Cape High Court, Cape Town You are here: SAFLII >> Databases >> South Africa: Western Cape High Court, Cape Town >> 2024 >> [2024] ZAWCHC 308 | Noteup | LawCite sino index ## S v Kalmeyer (CC44/2020) [2024] ZAWCHC 308 (28 February 2024) S v Kalmeyer (CC44/2020) [2024] ZAWCHC 308 (28 February 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAWCHC/Data/2024_308.html sino date 28 February 2024 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) CASE NUMBER: CC44/2020 In the matter between: THE STATE and DERICK KALMEYER JUDGMENT DELIVERED I.R.O CONVICTION ON 28 FEBRUARY 2024 ANDREWS AJ Introduction [1]           Mr. Derrick Kalmeyer (“the accused”) is arraigned on two counts of attempted murder read with Section 94 and 266 of the Criminal Procedure Act, No. 51 of 1977 (“the CPA”); two counts of murder read with the provisions of Section 51(1) and 51(2) read with Schedule 2. Part I and Part II of the Criminal Law Amendment Act, No. 105 of 1977, as amended and one count of contravening Section 67(1)(a) read with Section 1 of the South African Police Service Act 68 of 1995 , to wit, resisting arrest. It is alleged that the respective murders were planned or premeditated. The accused elected to dispense with the use of assessors. Factual Background [2]           The accused, was in a relationship with Ms F[…] A[…] (“Ms A[…]”). They, together with Ms A[…]’ two children, F[...] W[…] A[…] (“F[...]”) who was about three years old at the time and C[...] A[…] (“C[...]”), who was 18 months’ old, resided in a separate entrance (“the Wendy House”), on the property situated at 6[…] H[…] Street, Vredenburg, belonging to the accuseds’ sister, Mrs Maria Fienis (“Mrs Fienis”). Mrs Fienis, lived in the main house with her husband Riaan Fienis and their two children. [3]           On the evening of 1 May 2019, the accused arrived at the Wendy House. Present in the house were Ms A[...], her children, F[...] and C[...]; her friend, C[...] O[...] (“Ms O[...]”) and her child B[...]. An argument ensued between the accused and Ms O[...]. Ms A[...] intervened. Mrs Fienis heard the commotion and upon entering the Wendy House, observed that the accused was holding Ms A[...] by her collar. The accused released his hold and Ms A[...] ran out of the Wendy House to the main house. Ms O[...] also ran out, but returned to fetch her daughter, B[...] and then also sought refuge in the bedroom of the main house. [4]           Later, C[...] was seemingly propelled through the window of the main house and landed on the floor. The police were summoned. At some point the accused left the premises. The lifeless body of F[...] was discovered in the Wendy House. C[...] was taken to hospital but succumbed to his injuries. The accused, who later returned to the Wendy House was apprehended and charged for the murders of F[...] and C[...] and the attempted murders of Ms A[...] and Ms O[...]. The Plea [5]           The accused pleaded not guilty to counts 1 – 5 and elected to exercise his right to remain silent. He tendered no plea explanation in terms of Section 115 of the Criminal Procedure Act 51 of 1977 (“CPA”). Admissions [6]           The following admissions were made in terms of Section 220 of the CPA: (a)          That the deceased, F[...] W[…] A[...], a minor child, was at all material times correctly identified as F[...] W[…] A[...] and marked WC 15/0054/19, being the person mentioned in the indictment; (b)          F[...] W[…] A[...] was born on 25 November 2015; (c)          That the deceased, C[...] A[...], a minor child, was at all material times correctly identified as C[...] A[...] and marked WC15/0055/19, being the person mentioned in the indictment; (d)          C[...] A[...] was born on 20 October 2017; (e)          The biological mother of F[...] W[…] A[...] and C[...] A[...] was F[…] A[…] C[…] A[...]; (f)           F[...] W[…] A[...] and marked WC15/0054/19, was declared dead on 1 May 2019 at 03h44; (g)          C[...] A[...] and marked WC15/0055/19 was declared dead on 1 May 2019 at 04h25; (h)          The notes, facts and findings noted in the affidavit by Anunchia Lynn Kotze “Kotze” in Exhibit B, dated 16 May 2019 are true and correct; (i)            The notes, facts and findings noted in the “Key to Photos” attached to the affidavit of Kotze dated 14 May 2019 are true and correct; (j)            The photo album, photographs 1 to 69, taken by Kotze on 1 May 2019 correctly depicts the crime scene and the bodies of F[...] W[…] A[...] and C[...] A[...]; (k)          The notes, facts and findings noted in the affidavit by Kotze dated 7 May 2019 are true and correct; (l)            That the accused was arrested on 1 May 2019 by Harchell Anthony Petre Fortuin who is employed by the South African Police Service and stationed at Vredenburg Police Station; (m)        That the accused had drafted and forwarded a letter to the mother of F[…] A[…] C[…] A[...] dated 22 June 2019 and (n)          The accused admitted the content of the letter marked Exhibit C . [7]            The accused confirmed that admissions were read to him and interpreted in Afrikaans; that he understood the aforementioned admissions, and made the said admissions freely, voluntarily and in his sober senses. Burden of proof [8] In S v Chabalala , [1] the Supreme Court of Appeal held that in evaluating evidence before court the correct approach is to weigh up all the elements which points towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt to the accused’s guilt. [9] In S v Shackell , [2] the Supreme Court of Appeal per Harms AJA, as he then was, held that a court does not have to be convinced that every detail of an accused’s version is true. If the accused’s version is reasonably possibly true in substance the court must decide the matter on the acceptance of that version. Of course it is permissible to test the accused’s version against the inherent probabilities. But it cannot be rejected merely because it is improbable; it can only be rejected on the basis of inherent probabilities if it can be said to be so improbable that it cannot be reasonably possibly be true. The evidence [10]        The state led the evidence of 12 witnesses namely: F[…] A[…] A[...]; Constable Edwin Kobe; Doctor Nadene Louise Scherman; C[...] O[...]; Maria Fienis; Sergeant Marshall Fortuin; Sergeant Mzamo Mbowane; Sergeant Ronaldo Joubert; Denise Thompson; Ethan Leroy Daniels; Lyndon Julies and Marsha Williams, in respect of the trial-within-a-trial, in terms of Section 190(2) of Act 51 of 1977, which application was ultimately not persisted by the state. [11]        Only the accused testified in the defence case after the application in terms of Section 174 of Act 51 of 1977 was refused. The court recalled the investigating officer in terms of Section 186 of Act 51 of 1977. Summary of the evidence for the State [12] F[…] A[…] C[…] A[...] (“Ms A[...]”), testified that she knows the accused before court. She was in a relationship with him and stayed with him in a Wendy-House with her two children, F[...], aged 3 years and C[...] who was a year and six months old. The Wendy House is situated in the yard of the property of the accused’s sister, who stays in the main house. [13]        Ms A[...] testified that she was in the Wendy-house on the bed with her two children. Her friend, C[...] O[...] (“Ms O[...]”) was sitting at the foot end of the bed. She was changing her son’s nappy. When she looked up she saw the accused with a crowbar in his hand. The accused uttered words to the effect that he just feels like he can kill her, F[...] and C[...]. Ms A[...] explained that she became scared. She got the impression that the accused wanted to assault them. Ms O[...] jumped up and when she was done changing the nappy she too jumped up. They were trying to wrestle the accused until they reached the door. As they reached the door, the sister of the accused, Mrs Fienis, arrived. She pulled Ms A[...] out of the house and took her to the main house where she and her husband hid her in the cupboard. Ms A[...] explicated that Ms O[...] followed behind her shortly. She indicated that she was in the cupboard for about two hours. The children were left behind in the Wendy-House with the accused. [14]        While she was in the cupboard, she heard crying, then she heard the lounge window’s glass breaking. That was when the accused, according to her, threw her 18-month-old son, C[...] through the closed window. She narrated that she heard C[...] crying. Ms A[...] stated that she tried to get out of the cupboard to check why here children were crying. The accused’s sister and her husband did not want her to leave the room. She explained that she eventually did not hear F[...] crying in the background anymore. [15]        Ms A[...] orated that she telephoned her mother to request her to come to the house because the accused had thrown the child through the closed window. Ms A[...] orated that the police arrived on the scene and did not want her to leave the house. She noticed C[...] lying next to her crying. C[...] was injured. She described that he was on all fours, knees and hands. Ms A[...] observed that there was blood on his T-shirt, but did not think it was serious.  C[...] was then taken by ambulance to the hospital where he passed away. [16]        F[...] was still in the Wendy-House. Later the accused’s sister came into the main house with F[...] who was already deceased. According to Ms A[...], F[...] was stabbed 17 times. She stated that she did not speak to the accused again after the incident, except for receiving the letter marked “Exhibit C” which was delivered to her via her mother. [17]        Much of the accused’s version, preceding was confirmed by Ms A[...] during cross-examination, save that she denied the accused’s version that the crowbar would not be kept in the house, but in the garage, reiterating that the crowbar was hanging behind the door. She refuted the version that the accused went to speak to Derek in the car to tell him that C[...] no longer wanted to go with him.  Ms A[...] stated that the accused is lying about him knocking on the door of the main house to inform Riaan, the husband of his sister that he would be leaving. Ms A[...] conceded that she could not have observed anything whilst she was in the cupboard and could only hear what was happening. She confirmed that she did not know what happened in her house. She was unable to comment on the accused’s version as to what he says he did after informing Riaan Fienis that he was leaving. Much of the rest of the accused version she answered by stating she had no knowledge of the veracity thereof as she had left to go to the hospital. [18]        Ms A[...] confirmed that the accused loved the children but on the night of the incident he told her that he will hurt C[...] and F[...] and kill her. She confirmed that when she, C[...] and the accused were struggling with the crowbar, that the accused did not strike any of them. Ms A[...] refuted the suggestion that it could have been someone else who harmed the children during the time when he left. [19] Constable Edwin Kobe (hereinafter referred to as Constable Kobe), narrated that on 1 May 2019 at approximately 2:30am, he received a call about a complaint of a fight in H[…] Street. He proceeded to the address, where he passed a male walking, but did not take much notice of the person. When they stopped at the premises they were met by Maria Fielies who indicated that they must come into the house immediately because there is something wrong. Upon enquiring, she informed him that her brother, the accused before court, threw the baby through the window. He articulated that he observed the broken window and blood and a boy lying on his stomach with his face down. [20]        Constable Kobe explained that he checked for signs of life and discovered that the child was still alive. He immediately summoned, through radio control, for an ambulance. He further orated that he was approached by another lady who also appeared anxious and screamed that she was the mother, F[…] and that he had to check on the daughter. As they were in the process of accompanying her, Maria Fienis came in carrying the daughter. He observed that the child’s clothes were full of blood. Mrs Fienis put the child down next to the boy. Constable Kobe explained that he checked for signs of life but couldn’t find any. He then contacted the radio room to send in pathology, LCRC, detectives and others to the crime scene. Whilst waiting for the ambulance to arrive, Maria Fienis took him to show him the place where she found the daughter. He established that it was where her brother, the accused was residing with Ms A[...] and the children. Constable Kobe testified that he noticed a blanket covered in blood and a knife under the pillow. [21]        He orated that he then went back into the main house. The paramedics arrived and declared the daughter dead at the scene. The boy was transported to hospital by ambulance. He explained that when they picked him up he was gasping for air; the child, as he described it, was struggling. Constable Kobe observed that the daughter had multiple stab wounds on her body and when they started working with the baby they realised he was also stabbed multiple times. Thereafter, Constable Kobe went to the Provincial Hospital where Dr Jafthas was still working on the boy. A few minutes later Dr Jafthas came out and informed them that the boy did not make it. Constable Kobe then went to the Police Station after the boy was taken by pathology. [22]        During cross-examination Constable Kobe was challenged about him not testifying during his evidence in chief that the person that was arrested was the same person that they drove past when they were en route to the crime scene. Constable Kobe stated that he testified what he wrote in his statement. He conceded that he could have attested to a supplementary affidavit but did not consider it because he lacked experience and had no guidance. He refuted that his evidence in this regard is an afterthought.  Constable Kobe expressed that seeing those two children on the floor at the scene traumatised him.  Constable Kobe conceded that he did not mention it in his statement. [23]        It was put to Constable Kobe that the accused will deny that he walked past any police vehicle.  He also strongly refuted the suggestion that he manufactured the evidence to secure a conviction because of the trauma he suffered that evening. [24] Doctor Nadene Louise Scherman (“Dr Scherman”), the principal Medical Officer in Forensic Pathology Services, Malmesbury, testified that she conducted a post-mortem examination on the body of a female child on 2 May 2019 under death register number WC/15/0054/2019. Dr Scherman read her chief post-mortem medical findings into the record and described the appearance of the body and conditions of the limbs. [25]        She testified that the main cause of death was penetrating incised wounds on the right chest, anterior, lateral and posterior with hypovolemic shock. She identified the wounds that were the likely cause of death and those that would have contributed to the cause of death. Dr Scherman orated that the body sustained 19 incised wounds of which some were penetrating. She opined that the blood loss of the incised wounds would have contributed to the cause of death. [26]        According to Dr Scherman, the 11 wounds on the right arm could have been defensive wounds. All the wounds were caused by sharp force trauma inflicted by a knife or any sharp object. The deceased received no medical treatment and was declared dead on the scene. [27]        Dr Scherman further stated that she also conducted a post-mortem examination on the body of a male child on 2 May 2019 under death register number WC/15/0055/2019. Dr Scherman read her chief post-mortem medical findings into the record and described the appearance of the body and conditions of the limbs. [28]        She explained that there was prior medical intervention as most of the wounds were sutured already. She testified that the body sustained 14 wounds. The cause of death were multiple penetrating incised wounds with consequences. In her opinion, all the wounds could have contributed to the ultimate death of the deceased. There were 5 defensive wounds on the left arm. She explicated that 13 of the wounds were sharp force trauma and 1 was caused by blunt force trauma to the head. [29]        Dr Scherman explained that it was very upsetting to examine the two bodies of 2 young children and opined that whoever is responsible for their death “It was overkill”.  A 2-year-old child and an 18-month-old baby could not have defended themselves. [30] C[...] O[...] (“Ms O[...]”), testified that she stayed in H[…] Street at the time of the incident on 1 May 2019. She confirmed that she knows the accused, whom she met as he was her boyfriend Bronwyn Fortuin’s friend. She explained that she became friends with Ms A[...]. She described the events leading up to the incident. She stated that after dropping off the SASSA money that Ms A[...] went to draw at her mother’s house, Derick Oosthun, dropped her and Ms A[...] at the accused’s house. They went into the house and then took a walk to buy drugs from Derek Oosthun’s brother and returned to the Wendy House, that is situated on the property of the accused’s sister’s house. She explained that they smoked the drugs when Derick Oosthun came in accompanied by another gentleman. Derick Oosthun wanted her to go with him to have sex and she refused and Derek Oosthun left. She and Ms A[...] fell asleep and was woken up by a knock at the door. Ms O[...] explained that she opened the door. It was the accused and Derick Oosthun who entered the house.  Derick Oosthun again said to her that he wanted to be with her. [31]        She explained that the two Dericks’ sat a little while and drank beer whereafter they left. She further narrated that she wanted to close the door that was open and saw the accused who was standing outside the door, looking at her. She walked away from the door and the accused came inside and closed the door behind him. Ms O[...] explained that she went into the room and the accused came in with an iron object in his hand. According to Ms O[...], the accused said he will “slaan onse koppe pap”. He gestured “gemik” with the iron object when he uttered the words.  Ms A[...] had her daughter behind her, stood up and accused hit Ms A[...] with the iron against her head. Ms O[...] testified that she tried to take the iron away. The accused then left the iron and then took the beer bottle and hit C[...] against the head with the beer bottle. Ms O[...] explained that she held the accused so that Ms A[...] could get out. They shouted for help and Maria Fienis, the accused’s sister kicked the door open. Ms A[...] managed to run out. She explained that Ms A[...] ran into the main house. The accused went back into the room of the Wendy House. [32]        Ms O[...] explained that she stood at the door of the Wendy House and went back to fetch her own daughter. C[...] was lying on the floor by the door. Ms O[...] ran to the main house. She further orated that Ms A[...] hid in the cupboard and she hid on the cupboard next to the cupboard where Ms A[...] was hiding. [33]        Mr O[...] further explicated that the accused knocked on the door. Maria opened the door and he asked Maria where Ms A[...] was. She told him that Ms A[...] was not there and then the accused left. Thereafter C[...] came through the window “soos een wat hom deur die venster gegooi het”. [34]        According to Ms O[...], Mrs Fienis was standing in the living room and shouted “No Derick No!!”. C[...] was lying on the ground. He was crying and full of blood. She explained that she and Ms A[...] then came out of the room. Ms A[...] collapsed. When the police arrived, Mrs Fienis took the police officer to go and look how her brother stabbed the children. She explained that Mrs Fienis proceeded to the Wendy House and brought F[...] back with her. [35]        During cross-examination Ms O[...] remained steadfast that the accused hit C[...] with the beer bottle. Ms O[...] denied that the accused told her that Dereck Oosthun was on his way as per their prior arrangement. She denied the version put to her that an argument ensued because she made him look bad in front of his colleagues. Ms O[...] remained steadfast that the accused hit Ms A[...] despite the denial of this by Ms A[...] as was put to her. According to Ms O[...], she heard that the accused was at the Plakkerskamp. Ms O[...] was steadfast that the accused was in the Plakkerskamp and not Hopland because Linda’s house is in the Plakkerskamp. Ms O[...] disputed the proposition that it was someone else that murdered the children, and reiterated that it was the accused who did it. [36] Maria Magdalene Fienis (“Mrs Fienis”), the sister of the accused confirmed that the accused was residing with her at 6[…] H[…] Street.  She explained that on 1 May 2019, she woke up at 02:10am in the morning because she heard screaming “gil”. She explained that she went to the yard to the accused’s shack. She tried pushing the door and could not open it, so she kicked the door open. She observed Ms O[...] with the child on her hip. She demonstrated how the accused was holding Ms A[...] on her clothing at the back of her neck. The accused then let go of Ms A[...] and both Ms A[...] and Ms O[...] then ran past her. Mrs Fienis orated that she ran after them and closed the door of the kitchen to the main house. When she got into the house, they were already in the main bedroom. Ms O[...] was next to the wardrobe trying to get on top of it with her child and Ms A[...] was inside the wardrobe. Mrs Fienis explained that she first called Ms A[...]’ mother to tell them that they must come as there is big trouble happening. Thereafter she called the police. She further explicated that while she was on the phone with the police she just saw C[...] coming through the closed glass of the window. C[...] fell on the tiled floor in the living room. She told her husband that they could not touch him they should wait for the police to arrive. [37]        Ms A[...] asked about her daughter F[...]. According to Mrs Fienis, she told Ms A[...] that they should also wait for the police to arrive because she does not know who else is there at the back. She testified that when the police arrived, she went out to them.  She told them they had to accompany her. The police officer followed her. They went to the back. She went inside the accused’s house and the police officer remained at the door. She saw F[...] lying on the bed. She thought that F[...] was sleeping. Mrs Fienis stated that she picked F[...] up and saw there was blood on the front of her T-shirt. The police officer said she must take F[...] inside the house. The policeman followed her into the house, where she lay the child on the tiled floor. At that time, the ambulance was already there. There was no cross-examination of this witness. [38] Sergeant Marchell Anthony Petré Fortuin (“Sgt Fortuin”), testified that he was on duty, on 1 May 2019 doing crime prevention. He was dressed in full police uniform. Whilst in the charge office, family members of the deceased arrived. They were hysterical and reported that the person who committed the murders had returned home. [39]        Sgt Fortuin explicated that he proceeded to the house where the murder happened and encountered members of the community on the property moving towards the back of the house. He stated that they wanted to break into the shack. He spoke to the people to get them off the property so that he could personally go to what he referred to as the shack. Sgt Fortuin explained that he felt the door and noticed that someone was pushing the door closed from the inside. He testified that he pushed hard and also used his shoulder to try and get the door open. He then tried to squeeze through the opening and when he managed to get his head through he could see an object being flung towards his head. He then stepped back and ran toward the door and forced the door open which cause the person who was behind the door to fall over and move away from the door. Sgt Fortuin further explained that when he got inside the shack he recognised the person as Derick Kalmeyer, also known as “Slang”. He further orated that they grabbed onto each with as the accused was trying to get away and he was trying to arrest him. They struggled until he was able to get him off balance which caused the accused to fall thereby creating an opportunity for him to effect the arrest. The accused was then placed in handcuffs whereafter his rights were explained to him. In order to secure safe passage to the police vehicle, the community members had to be requested to allow him to escort the accused unhindered. The accused was taken to the police station and handed over to the detectives for further processing. [40]        During cross-examination, it came to light that Sgt Fortuin could not dispute that there may have been community member(s) with firearms as he did not look at everyone on the premises. He could also not refute that the accused claimed to be afraid when he overheard threats being made that they would shoot him. Sgt Fortuin could not dispute that the accused claimed that he did not know that it was the police who was trying to open the door. He conceded that he did not announce himself as a police officer when they arrived. He explained during re-examination, that there was so much chaos as there were people who were attempting to break into the shack with the intention to hurt the accused. Sgt Fortuin testified that it was his obligation to ensure the safety of the accused. [41]         Sgt Fortuin confirmed that the police sprayed pepper spray into the shack. According to Sgt Fortuin reason pepper spray was used was so that they could get him away from the door. Sgt Fortuin denied that his firearm was drawn. According to him, his firearm was in the holster the entire time. Sgt Fortuin reiterated that he saw the object when he put his head through the opening and when he entered he saw the metal pole, that he described as being as long as his forearm and hollow inside, was lying at the door. Sgt Fortuin was confronted about why he did not describe the metal pole in his evidence in chief and why he did not mention seeing the pole lying on the ground when he entered the shack. Sgt Fortuin explained that it slipped his mind to mention it and that it is human to forget. Sgt Fortuin reiterated that there was a struggle when it was put to him that the accused will deny that he attempted to resist arrest. It was put to Sgt Fortuin that the accused was suffering from the effects of the pepper spray and as such would not have been able to wrestle with Sgt Fortuin. [42]         In re-examination Sgt Fortuin reaffirmed that the accused put up a fight with him before he was able to place him under arrest. [43] Bamanye Mzamo Mbovane (“Sgt Mbovane”), explained that on 1 May 2019 he was on standby when he was called to attend at a murder scene in H[…] Street. He was accompanied by Sgt Joubert. He narrated that when they arrived they were shown the body of a child lying in the sitting room. They were informed that there was another child who was already taken to the hospital. They proceeded to the hospital. [44]        Whilst on their way back to the scene they were informed via radio that the suspect was at the house. When they arrived they encountered a lot of community members standing outside the shack at the back of the property. There were also other police officers present. Sgt Mbovane explicated that they tried to open the door but there was a person behind the door. They had to use force to open the door. He explained further that the person was looking at them through a little window in the door. After they managed to force open the door, the accused was taken into custody and escorted to the vehicle. He explained that he was not in uniform, but was driving a marked vehicle. [45]        During cross-examination he confirmed that the scene was chaotic. It was put that the accused confirms that there was a struggle at the door. It was put that the accused will deny that he looked through the small glass. Sgt Mbovane remained steadfast that he did. He also confirmed that Sgt Fortuin was with him and would have seen the accused looking through the small glass. [46] Ronald Joubert (“Sgt Joubert”), testified that he is stationed at Vredenburg SAPS and has 16 years’ service. He placed on record that he holds the rank of Sergeant and works in the detectives’ unit. Sgt Joubert testified that he was on duty on 1 May 2019 with Sgt Mbovane. They were called to a murder scene. He explained that they attended at Vredenburg Hospital where one of the victims were admitted. They were on their way to the house when they received a call that the suspect was there.  On their arrival there were community members on the property. The community members were trying to force the door of the shack open. Sgt Fortuin also arrived on the scene. Sgt Joubert explicated that while they were trying to get the door open, he was controlling the crowds. Sgt Fortuin and Sgt Mbovane managed to get the suspect under control and placed him under arrest. There was no cross-examination of this witness. [47] Denise Verna Thompson (“Ms Thompson”) the Emergency Practitioner, testified that on the 1 May 2019, she was on duty. She and her colleague was dispatched to attend at H[…] Street. She narrated that upon their arrival, she noticed police vehicles and community members at the house. She went into the house and her colleague remained in the ambulance. As she arrived she noticed the broken window and upon entering she notice a baby and a girl lying down on the floor. The boy was lying closer to the door. He was wearing a nappy. She observed that there was blood on his back. He was not moving at the time. She assessed the situation and focussed on the girl first; felt for a pulse and discovered that there was no pulse. Then she checked if the girl was breathing and noticed that she was not breathing. The girl was cold to touch, which in her opinion meant that she was deceased for maybe an hour already. [48]        Thereafter she turned her focus on the little boy who was lying on his stomach. There was a lot of glass lying in the vicinity where he was. When she checked if the boy was breathing, he moved like he wanted to stand up in a crawling position. Ms Thompson further orated that she took the boy and ran to the ambulance with him.  She handed the boy to her colleague who was already at the back of the ambulance to administer patient care. The boy was placed on the stretcher and given oxygen. Ms Thompson rushed to Vredenburg Hospital where she handed the baby over to Dr Jaftha who was already waiting. She briefed Dr Jaftha that the child was thrown through the window. She also observed multiple stab wounds. [49]        Ms Thompson then left to go back to the scene, filled out the declaration of death and handed the body of the girl to forensics. She testified that she then returned to the hospital where she established that the boy had since also passed away. She stated that she reported to her manager that they were too traumatised to continue working and counselling was provided for them. [50]        During cross-examination, the age discrepancy was clarified. According to Ms Thompson, she only went on what she was told. The boy looked to be between the ages of 7 to 9 months old as he was wearing a nappy. She stated that she did not count the wounds immediately. Only did so later. She conceded that the head wound on the boy could have been caused by him being thrown through the glass. [51] Ethan Leroy Daniels (“Mr Daniels”), stated that he works for Forensic Pathology Services in Vredenburg. He explicated that on 1 May 2019, he received a call from Vredenburg SAPS to collect a body from 6[…] H[…] Street, Vredenburg. Mr Daniels explained that he attended the call and conducted crime scene investigation which entails taking photographs of the body, the position, entrance and exits of the house. He stated that there was one body in the house of an infant female. He orated that as he was loading the body into the vehicle, he received a call from a police official informing him that there was another body at the Vredenburg Hospital. [52]        Mr Daniels further explained that he went to Vredenburg Hospital to collect the body of an infant boy. He explained that he tagged the girl’s body with serial number WC 15/0054/19 and the boy’s body with serial number WC 15/0055/19 at their facilities. He explained that he checked to see whether the bodies sustained any further injuries from the time of collection to the time when the body(ies) arrive at the facility. He described that the bodies were naked. The boy was wrapped in sheet from the hospital. After tagging and checking the bodies were placed in refrigeration for safekeeping. He was informed by Dr Scherman that she would be conducting the post mortem examination the following day, namely 2 May 2019. [53]        Mr Daniels explained that he removed the bodies with the references provided, from the fridge and presented the unwashed bodies to the doctor who then conducted the post mortem. After the post mortem, he cleaned the bodies and made sure that the bodies did not sustain any further injuries while the bodies were in his possession. The bodies were then placed back into storage for safekeeping. [54]        During cross-examination Mr Daniels explained at what stages bodies are checked to ensure that no further injuries were sustained. Initially this is checked against the injuries as photographed on the scene. When he gets to the facility he checks to see that no new markings are on the body before he puts it into refrigeration. [55]        Mr Daniels further explicated that the ages recorded would be as it is given to him, which remains unverified at that stage. Although he referred to the bodies being infants he confirmed that it wasn’t a baby. He indicated that both bodies presented with multiple stab wounds. He also confirmed that there was a lot of blood present at the crime scene and that anyone who would pick up the body would have transfer blood. Mr Daniels stated that it is for that reason that they bag bodies on the scene. [56] Lyndon Julies (hereinafter referred to as Mr Julies), testified that he works as a facilities manager at Vredenburg Forensics. He explained that on 6 May 2019, he did the identification of the bodies of 2 deceased bodies bearing serial numbers WC 15/0054/19 and WC 15/0055/19, respectively. He explained that he removed the bodies from the fridge and presented them to the mother upon showing him proof of identification of the bodies. He then completed the information on the system. After verification, the bodies were placed back into the fridge. He confirmed that while the bodies were in his possess, no further injuries were sustained. [57]        The State’s case was thereafter closed whereafter, the Defence applied for a Section 174 discharged that was refused. [58]        The accused was called to give evidence in the defence case. Derick Kalmeyer (“the accused”) testified that he is 54 years old and is the father of 2 adult children aged 29 years and 33 years old respectively. At the time of his arrest he was employed as a labourer for AB Van Heerden Construction earning R2000 every fortnight. He narrated that he was residing with his sister, Maria Fienis at 6[…] H[…] Street. The accused explained that he resided in what he referred to as a shack on the property in the backyard. He described the shack as comprising of a kitchen and a bedroom. His sister, resided in the main house with her husband, Riaan Fienis and their two children. [59]        The accused explained that he met F[…] A[...] through her father, F[…] A[...] when he was around 14 / 15 years old. According to the accused, he and Ms A[...] were in a love relationship for approximately 5 months prior to the incident. He explained the nature of his relationship with Ms A[...], and how it came about that she and her two youngest children moved in with him. The accused also explained how he met Ms O[...]. According to the accused, when he was introduced to Ms O[...], Bronwyn was engaged to her. They had a daughter together “B[...]”. At that stage he knew Ms O[...] for approximately 3 months. [60]        The accused explained his connection with Derick Oosthun, who was his foreman; they worked together at the building construction and would meet up at times for beers after work.  Prior to working together, he knew Derick Oosthun by sight. The accused explicated that Derick Oosthun lives in H[…] Street approximately 400m away. The accused explained that Derick Oosthun’s brother lives on the premises in the yard with him. He sells drugs and other goods. The accused also explained his relationship with one Boeta Bywas and his connection with Linda whom he regularly visited in George Carriage where the RDP houses are built. [61]        The accused explained that he went to work the previous day of the incident and got home at around 6pm. At work, Derick Oosthun and Boeta Bywas informed him that they would be buying a case of beer and that they would fetch him from his place of residence just before 7pm later that day. They arrived to fetch him as planned. They then went to Derick Oosthun’s house where they ate, drank beer and listened to music. Ms A[...] and Ms O[...] arrived there just before 8pm. He explained that they went to the back to Derick Oosthun’s brother’s place, presumably to by TIK.  Thereafter they danced to the music and then asked Derick Oosthun to take them to the ATM to draw the child support grant money. They went back to the house where the accused and Derick Oosthun fetched them and the children, whereafter they went to withdraw the money, paid Derick Oosthun R100 for petrol and then dropped off money at Ms A[...]’ mother’s house in Hopland. On their way to Lovo, Ms O[...] and Ms A[...] wanted to know where they could buy TIK. Derick Oosthun informed them they could buy it from his brother. He then drove them there, where they purchased TIK, whereafter he dropped them off again at the accused’s place. [62]        The accused further explained that they went back to Derick Oosthun’s house where they continued to drink. Derick Oosthun and Boeta Bywa then decided to buy a bottle of brandy, which they purchased from a shebeen. According to the accused, it became late. It was already in the early hours of the morning of the 1 st of May 2019. Derick Oosthun drove the accused to his house. The accused explained that he knocked on the door and Ms O[...] opened the door. He told Ms O[...] that Derick Oosthun was waiting for her. According to the accused Derick Oosthun and Ms O[...] had a date. Ms O[...] informed the accused that she was not interested to go anymore. The accused orated that Derick Oosthun got very upset about it when he told him whereupon the accused undertook to talk to Ms O[...] again. The accused explicated that he informed Ms O[...] that Derick Oosthun was very angry and asked him to speak to her. [63]        According to the accused, this is where the argument started. He told Ms A[...] and Ms O[...] that they made him feel like a P…in front of his co-worker. He told Ms A[...] not to interfere in other people’s business. He felt that Ms O[...] should have informed Derick Oosthun herself that she was no longer interested to go with him. He stated that the nature of the argument was only an exchange of words. He told Ms A[...] that she must stop meddling in other people’s business as it was not her business. The accused explained that they spoke loudly. He testified that the P… word was the only swear word that he used while arguing.  His sister must have heard because she arrived a minute or two after the commencement of the argument. The accused explained that Mrs Fienis pushed the door open. At that time, he was holding Ms A[...] by her collar at the nape of her neck.  When he saw his sister he let go of Ms A[...]. [64]        Ms A[...] then left, followed by Ms O[...], who returned after a couple of seconds to fetch her daughter B[...]. Mrs Fienis also left. The accused stated that he stood in front of the shack for about 5 – 10 minutes, then went to knock on the door of the main house where Riaan opened. He asked Riaan where Ms A[...] was and Riaan informed him that she was not there. He said that he then told himself “I will see where I can find her”. He walked out of the gate and down the road to Derick Oosthun’s house who was not there because his car was not in the driveway. Thereafter he went to Hopland to Linda’s house. The accused explained that he went there to look for Bronwyn who told him to look for him at Linda’s house earlier the previous evening. The accused stated that it took him about 30 to 35 minutes to get to Linda’s house. when he arrived there he was informed that Bronwyn had left earlier that evening to go to the squatter camp. The accused testified that he decided not to go to the squatter camp because it was too dark and dangerous. He sat at Linda’s house for a while and then decided to go back home. [65]        When he arrived home he did not notice anything as it was dark. No-one was in the shack. He went inside, closed the door and then dozed off. He stated that he was awoken by a “ge-brommery”, buzzing sound of people’s voices and one person telling another, “Give me the firearm let me shoot him”. This is when he got up and went to the door to make sure that the door was closed because he didn’t want them to break the door down. [66]        According to the accused they attempted to break down the door but they could not. It got quiet after a while. Teargas was thrown into the shack which caused him to release the door. The policeman then pushed open the door and told him to “hands up”. The policeman had a firearm in his hand. According to the accused, he did not resist, was handcuffed and then taken to the police vehicle, whereafter he was taken to the Police Station. [67]        He explained that at Saldanha Bay Police Station a lady Captain took what he was wearing and placed it into separate evidence bags. He does not know what became of the clothes. He testified that they also took photographs of these clothing items namely his top, jeans and takkies. [68]        He testified that the crowbar is kept in the garage. He denied threatening Ms A[...] with the crowbar and or Ms O[...] with an iron tool used for scraping coals. He explained that he does not own such a tool as they make fire in a 25L drum. [69]        He denied hitting C[...] with a beer bottle. He denied wrestling with Ms A[...] and admitted to only grabbing her by her collar. He stated he had no motive to kill the children. He stated that he had no knowledge of Ms O[...]’s version that Mr Oosthun came to the house with another man, presumably Boeta Bywas, earlier that evening. He explained that he was, what he referred to as being in a cold war with Ms A[...]’s ex-boyfriend, Jonathan Bester. [70]        He denied attempting to hit the policeman with an iron pole at the time of his arrest, stating that there is no such pole in his house. He denied looking through the window of the door as the people were still “oproerig”. He denied wrestling with the Police Officer. He denied saying that he feels like he can kill Ms A[...], F[...] and C[...]. He clarified that the children were in the bedroom when he was arguing with Ms A[...] in the kitchen. Section 186 of Act 51 of 1977 [71]        During the course of preparing the judgment in this matter, it became apparent that there was evidence of certain witnesses which will be essential to the just decision of this case. The court invoked the provisions of Section 186 of Act 51 of 1977, which empowers the court to, at any stage of criminal proceedings, subpoena or cause to be subpoenaed any person as a witness at such proceedings, and the court shall so subpoena a witness or so cause a witness to be subpoenaed if the evidence of such witness appears to the court essential to the just decision of the case. [72]        The court emphasised that it has a legal duty to ensure that evidence is placed before it for a just decision. After having assessed all the evidence placed before the court, in the exercise of its wide discretionary powers, ordered, that the interest of justice requires that the following witnesses be subpoenaed: 1.            Derick Oosthun 2.            Riaan Fienis and 3.            Recall Sgt Mbovane to clarify whether the specimens collected at the crime scene referenced in Exhibit “B” has been sent for analysis. [73]        The Investigating Officer, Sgt Mbovane was recalled. From his testimony it became apparent that the knife, blood spatter collected from the wall next to the window, grey hoody and accused’s clothing were sent for analysis. It was furthermore established that the results were handed to the Prosecutor in November 2023 as according to Sgt Mbovane, it took a long time because of the backlogs at the laboratory. When asked whether the results would have assisted the State’s case his response was that he read the report but could not really understand what it was saying. [74]        It further came to light that Sgt Mbovane interviewed all the witnesses including Riaan Fienis, the brother- in – law of the accused. No statement was taken from him as he emphatically stated that he wasn’t interested in being part of this. According to the Sgt Mbovane, Derick Oosthun is deceased. [75]        In light of this evidence, the court being mindful of the imperative that strict neutrality is to be maintained, after hearing the evidence of the investigating officer, decided to not pursue the calling of Riaan Fienis, to protect its appearance of impartiality and being mindful of the accused’s fair trial rights. The court wasn’t persuaded that Riaan Fienis’ evidence would shed any additional light on the matter especially as he was not willing to provide a statement to the police. This also because of the recanted statement of Maria Fienis, which I will deal with later in this judgment. Furthermore, it goes without saying that the alleged demise of Derick Oosthun has rendered the calling of him as a witness moot. The state had an opportunity to present the DNA evidence and decided not to do so, neither was there any address by the state in this regard. I will also deal with this later in my judgment. Evidentiary material [76]        The following evidentiary material was admitted into evidence: (a)          The Section 220 admissions – Exhibit A; (b)          State evidence bundle – Exhibit B; (c)          Letter written by the accused – Exhibit C; (d)          Affidavit in terms of Section 212 – Dr Nadene-Louise Scherman – Report on a Medico-Legal Post-Mortem Examination – Death Register Number – WC/15/0054/2019 – Exhibit D1; (e)          Affidavit in terms of Section 212 – Dr Nadene-Louise Scherman – Report on a Medico-Legal Post-Mortem Examination – Death Register Number – WC/15/0055/2019 – Exhibit D2; (f)           Statement of Ms C[...] O[...] – Exhibit E and (g)          Statement of Mrs Maria Fienis – Exhibit F. Submissions by the Parties [77]        The State and the Defence prepared written Heads of Argument, prior to the invocation of Section 186 of Act 51 of 1977 by the court. The parties were invited to make additional submissions and both the stated and defence counsel stood by their written submissions as presented earlier. Common cause [78]        The following salient facts are common cause that: (a)          the accused was in a relationship with Ms A[...]; (b)          Ms A[…] and her two children, F[...] and C[...] resided with the accused in a Wendy House in H[…] Street, Vredenburg; (c)          The Wendy House is situated on the property belonging to Maria Fienis, the sister of the accused who lived in the main house with her husband Riaan Fienis and their children; (d)          The events leading up to the altercation between Ms O[...], the accused and Ms A[...] are by en large not disputed insofar as it pertains to how it came about to the ladies fetching the SASSA money, the dropping off of money by Ms A[...] mother and the buying of drugs after collecting the monies; (e)          Derick Oosthun made plans with Ms O[...] for later that evening presumably to have sex; (f)           The accused went to Linda’s house; (g)          The accused was apprehended in the Wendy House by the police. Issues in dispute [79]        The following salient issues are in dispute: (a)          That the accused wielded an iron object; (b)          That the accused uttered threats of harm; (c)          That the accused threw C[...] through the window of the main house; (d)          That the accused assaulted C[...] with a beer bottle; (e)          That the accused stabbed C[...] multiple times; (f)           That the accused stabbed F[...] multiple times and (g)          That the accused resisted arrest. Summary of the evidence in respect of Counts 1 and 2 Count One - Attempted murder [80]        According to the indictment it is alleged that the accused unlawfully and intentionally attempted to kill Ms A[...] by hitting at her with a crowbar and or a beer bottle. Ms A[...] testified that she was in the Wendy-house on the bed with her two children. She was in the process of changing C[...]’s nappy.  When she looked up she saw the accused with a crowbar in his hand. The accused uttered words to the effect that he just feels like he can kill her, F[...] and C[...]. Ms A[...] explained that she became scared. She got the impression that the accused wanted to assault them. Ms O[...] jumped up and when she was done changing the nappy she too jumped up. They were trying to wrestle the accused until they reached the door. As they reached the door, the sister of the accused, Mrs Fienis, arrived. She pulled Ms A[...] out of the house. [81]        The accused’s version is when he knocked on the door, C[...] opened for him.  He told Ms O[...] that Derick Oosthun was waiting for her and she said that she was not interested anymore. The accused told her that she can at least go and tell him herself. When Ms A[...] interfered, an argument broke out between the two of them. The argument, according to the accused was about him telling her that she must not interfere in other people’s business. He told her that she made him feel bad in front of his colleague. According to the accused, Ms A[...] wanted to go outside but he prevented her from leaving by grabbing her by the collar. The accused stated that he did not know where she was going as it was already dark outside. That is when his sister came and pushed the door open. Count Two – Attempted Murder [82]        It is alleged that the Accused, unlawfully and intentionally attempted to kill C[...] O[...] by hitting at her with a crowbar. Ms O[...] narrated that the accused came in with an iron object in his hand. According to Ms O[...], the accused said he will “slaan onse koppe pap” and gestured as if he was going to hit. According to Ms O[...], when Ms A[...] stood up the accused hit Ms A[...] with the iron against her head. Ms O[...] testified that she tried to take the iron away. The accused left the iron and then took the beer bottle and hit C[...] against the head with the beer bottle. Ms O[...] explained that she held the accused so that Ms A[...] could get out. They shouted for help and Maria, the accused’s sister kicked the door open. Evaluation of the evidence in respect of counts 1 and 2 [83]        This court is called upon is to consider whether the state has succeeded to prove all the elements of the offence of attempted murder as per counts 1 and 2 of the indictment, beyond reasonable doubt. According to the accused Ms O[...] was engaged to his brother’s eldest son, Bronwyn. The accused was aware that Derick Oosthun planned to have a sexual encounter with Ms O[...], and when she refused, the accused stated that she made him look bad in the eyes of his colleagues. His words were during evidence in chief as was translated “and I told F[…] and them they made me feel like a P… in front of my co – workers. He even went as far as to tell Ms A[...] not to interfere in other people’s business. It appears that the argument on the accused’s version centred around Ms O[...]’s apparent change of mind to go with Derick Oosthun. [84]        The accused, when confronted about the morals of encouraging Ms O[...] to go with, Derick Oosthun, responded that “Derick is my foreman and my friend – I had no problem…To tell you the truth that was things that happen on a daily basis”. The situation evidently did not cause any feeling of discomfort to the accused, who ultimately got upset and expected Ms O[...] to tell Derick Oosthun herself that she was no longer interested. [85]        The accused’s version as to how many times Derick Oosthun was at the house differed to that of Ms O[...] and Ms A[…]. The accused indicated that he had been there once whereas Ms A[…] and Ms O[...] stated that David Oosthun was at the house twice; once with Boeta Bywas and the other time with the accused . It is interesting that when the accused was asked whether there was a reason why Derick Oosthun did not go into the Wendy House himself and ask C[...] himself, the accused stated that it was because he never came into the house; he would always park on the pavement and hoot. This, contradicts the accused proposition that Derick Oosthun could have committed the murders, which suggestion, is in my view, implausible on the accused’s own version. [86]        The accused, in an attempt to dilute the extent of his rage and action conceded that he grabbed Ms A[...] by her collar. He is silent on the events that precede the grabbing and then justifies to some extent the reason for doing so. His explanation was that Ms A[...] wanted to go outside but he prevented her from leaving by grabbing her by the collar. The evidence is that they were wrestling until they reached the door when Mrs Fienis entered. It may be so, that the accused wanted to prevent her from going outside, but to say that it was because it was already dark outside, is in my view, improbable. In any event, the door appeared to have been locked as Mrs Fienis had to kick the door in order to gain access. In my view, Ms A[...] wanted to escape from the accused and he tried to prevent her from doing so by grabbing her by the collar. The court rejects the accused’s explanation as not being reasonable in the milieu of what was happening. On the accused’s own version, he stated that his sister came over to his Wendy House because of the “shouting”. Mrs Fienis herself said she was woken up by the screaming “gil” that she heard. [87]        Counsel for the accused furthermore argued that if the accused indeed made those threats, then it would be improbable that Ms A[...] would have left the children behind when she left the room. This argument, again, in my view, takes a narrow approach to the events that played itself out in the early hours of the morning. In order to demonstrate this point, it is necessary to consider the scene. The common cause facts are that there was an argument between the accused, Ms A[...] and Ms O[...], to the point where the accused own sister deemed it necessary to investigate what was happening where she finds the accused physically grabbing Ms A[...]. The fact that Mrs Fienis came into the Wendy-House, gave Ms A[...] an opportunity to escape and flee into the main house where she sought refuge. [88]        It is evident that Ms A[...] described the object that the accused was wielding as a crowbar. Ms O[...] was confronted about why the description of the object she had given in evidence was different to that which Ms A[...] described, to which she responded that she had forgotten what the name of the iron was. “Ek het nie yster se naam onthou nie”. However, it is apparent that she described it to be roughly the length of the microphone that is approximately 40 – 45 cm in length. What she described was akin to an iron that is used to scrape coals out of a fire. She confirmed that there is a fire-place / galley in the yard. Ms O[...] conceded that there are differences between a crowbar and an iron used for fire and that it was in fact a different instrument altogether. The accused emphatically denied having a crowbar in his hand or close to him. The accused testified that the crowbar would not be kept in the house, but in the garage. [89]        Inasmuch as the witnesses provided different descriptions of the iron object, Ms O[...], in my view, proffered an explanation that she forgot the name of the instrument, bearing in mind that she testified approximately 4 years after the incident. It is apparent from Ms O[...]’s statement, Exhibit “E” where she stated “Derick het vir haar gemik met die crowbar wat hy in sy hand gehad het”, that the object was described as a crowbar. It is therefore my view that the evidence of Ms A[...] and Ms O[...], insofar as it relates to the presence of an iron object is not contrived. The accused himself says that there is a crowbar on the property but that it is kept in the garage. This strengthens the probability that the iron object was indeed a crowbar; however, for the purposes of this matter, it is sufficient for the court to conclude, based on the evidence as a whole, that there was an iron object wielded. [90]        The utterance of the accused to the effect that he “felt like he could kill her and the children” as per the testimony of Ms A[...] was denied by the accused, when he retorted “Ek het nog nooit so gese nie” ( I never said so). The accused denied the version of Ms A[...] and Ms O[...] which was put to him. It was furthermore submitted that if the accused had indeed said this, Ms O[...] would have heard it and subsequently testified to it, but she did not. Interestingly, it is the defence who confronted Ms O[...] about another purported inconsistency in her statement, received into evidence as Exhibit “E”. In this statement, the following is recorded “Derrick het toe kwaad geraak en gese hy slaan nou ons koppe sowel as ons kinders sin pap”. What is recorded in Ms O[...]’s statement is in my view, similar to that of her viva voce evidence that he will “slaan onse koppe pap”. [91]        It must be borne in mind that the statement was made by Ms O[...] on 02 May 2019, a day after the incident when the incident was relatively still fresh in her mind. Her viva voce evidence in court was given more than 4 years after the incident. It is my view that the probative value of the statement, made a day after the incident, carries significant weight. [92]        To argue that Ms O[...] would have heard it and subsequently testified to it is, in my view, an approach which ignores the memorial of the event attested to by the Ms O[...], under oath merely a day after the incident; not to mention that the atmosphere within which the event was steeped as it unfolded; which included shouting as per the testimony of Maria Fienis (she used the word “gil”), may account for why certain things were heard and others not; and why the witnesses’ testimonies are not identical. The accused himself confirms that they spoke “loudly”, albeit perhaps a toned down exposition of the extent of the altercation. [93] In the case of S v Bruiners en Anders [3] it was held that ‘ [e]xperience had shown that two or more witnesses hardly ever gave identical evidence with reference to the same incident or events. It was thus incumbent on the trial court to decide, having regard to the evidence as a whole, whether such differences were sufficiently material to warrant the rejection of the State's version’. [94]        It can be safely accepted that to threaten to hit someone’s head to a pulp constitutes a threat to kill. It is in my view, a matter of semantics because if the utterances are ultimately analysed, there is no room to doubt that it amounted to some form of threat to physically harm the complainant(s) and/or the child(ren). The court is satisfied that threats were indeed made by the accused as the evidence in this regard is corroborated. [95]        Counsel for the accused highlighted the contradictions in the evidence of Ms A[...] and Ms O[...]; more particularly in relation to the assault on Ms A[...]. It was argued that in the absence of a J88, no case has been made out for attempted murder or assault with intent to do grievous bodily harm. It is the state’s contention that the accused, inspired a belief that injury would be inflicted. There is no J88 or medical reports to support allegations of assault. The evidence of Ms A[...] was that she was not physically harmed, and therefore a J88 will be of no assistance. [96]        It is manifest that the versions of both Ms A[...] and Ms O[...] differ insofar as the allegations of assault is concerned. Ms A[...] does not make mention of being assaulted with the crowbar at all and neither did she testify about being hit with a beer bottle as alleged in the charge sheet. Ms A[...] conceded that neither she nor Ms O[...] were struck with the crowbar. Ms A[...] explained that she became scared. She got the impression that the accused wanted to assault them. It is further evident that Ms A[...] did not testify that the accused hit C[...] with the beer bottle. [97] The consideration before this court is ultimately whether the accused can be convicted of attempted murder if only a belief to injure was inspired. The obvious question is whether the accused attempted to kill Ms O[...] and Ms A[...] as alleged.  On the evidence presented, there was a threat and a wielding of an iron object as well as an interruption by Ms O[...] who tried to stop the accused. When considering the unlawful conduct element ( actus reus ), there are two kinds of attempts, namely completed and uncompleted. In this regard, Watermeyer CJ remarked as follows in Schoombie [4] ‘ 1         those in which the wrongdoer, intending to commit a crime, has done everything which he set out to do but has failed in his purpose either through lack of skill, or of foresight. Or through the existence of some unexpected obstacle, or otherwise, 2          those in which the wrongdoer has not completed all that he set out to do, because the completion of his unlawful acts has been prevented by the intervention of some outside agency.’ [98] The writer Jonathan Burchell ‘ Principles of Criminal Law’ (5 th Ed) [5] , remarked that ‘ [a]lthough the Chief Justice in Schoombie did not expand upon completed attempts, it seems probable that he had in mind the kind of situation where, for instance, intending to kill, X fires a gun at Y, but the bullet misses. Clearly, in such a case there would be sufficient unlawful conduct for attempted murder and there would be no problem as to whether X’s act was sufficiently proximate to the killing of Y to amount to an attempt. [6] [99] A subjective or objective test may be applied to determine whether an accused’s acts amount to an attempt. It is trite that the subjective test remains with the state of mind of the accused. It is further trite that in an instance where an accused intends to commit the crime in question, the accused will be liable for attempt as soon as he or she does an act in furtherance of that intention, no matter how remote the act may be from the completion of the crime. On the other hand, the objective test requires that the acts of the accused in pursuance of his intention to commit the crime in question must have proceeded a considerable way towards the commission of that crime. [7] [100] In Schoombie [8] (supra), Watermeyer CJ concluded that: ‘… in the case of interrupted crimes an attempt to commit such crime is proved when the court is satisfied from all the circumstances of the case that the wrongdoer, at the time he was interrupted, intended to complete the crime and that he had at least carried his purpose through to the stage at which he was “commencing the consummation” [of the crime].’ [101]        Ms A[...], during cross-examination conceded that she and Ms O[...] were not struck. Would it, however be sufficient if one says I feel like I want to kill you and then brandishes a weapon that could potentially cause fatal injuries leading to one’s demise or should there be more. To take it a step further, did those utterances, coupled with the gesture that he wanted to hit Ms A[...] inspire the belief that he would kill? In this instance, to reiterate, Ms A[...] evidence was that she became scared. [102]        Ms O[...] on the other hand jumps into the mix and both the ladies challenge the accused, presumably in defence of what was about to happen. It must also be borne in mind that the accused is much older than Ms A[...] and Ms O[...] and was evidently the aggressor, on the versions of Ms A[...] and Ms O[...] and to some extent the accused himself as he held Ms A[...] by her collar. From the evidence on record, it is apparent that the accused made a gesture to hit towards Ms A[...]. It is therefore my view that the conclusion to which both Ms A[...] and Ms O[...] came was inspired by the threat made by the accused coupled with his ongoing aggression until Mrs Fienis arrived who observed that the accused was holding Ms A[...] by her collar. [103]        Two contradictions in the versions of Ms A[...] and Ms O[...], were highlighted by the defence; the first being that the accused hit Ms A[...] with the object he was wielding and the second being that the accused hit towards Ms A[...] with a beer bottle and missed and ultimately struck C[...] on the head. The question to be answered is whether these contradictions are sufficiently material to warrant the rejection of the witnesses’ evidence in this regard as it was contended by the defence that if it happened then Ms A[...] would have testified to that. It was argued that Ms O[...] lied in this regard. [104] In dealing with contradictions, this court is mindful of what was stated in S v Mkohle [9] where Nestadt JA stated the following: ‘ Contradictions per se do not lead to the rejection of a witness’ evidence…They may simply be indicative of an error (S v Oosthuizen 1982 (3) SA 571 (T) quoting from 576G-H:) … it is stated that not every error made by a witness affects his credibility; in each case the trier of fact has to take into account such matters as the nature of the contradictions, their number and importance, and their bearing on other parts of the witness’ evidence. No fault can be found with his conclusion that what inconsistencies and differences there were, were “of a relatively minor nature and the sort of thing to be expected from honest but imperfect recollection, observation and reconstruction”. One could add that, if anything, the contradictions point away from the conspiracy relied on (98f-g)’ [105]        Ms O[...]’s version that she saw the accused hitting C[...] with the beer bottle. The possibility that C[...] was indeed struck with the beer bottle cannot be excluded if regard is had to the corroborative evidence relating to the injuries noted in the Post-Mortem Report – Exhibit D2, and the testimony of Doctor Scherman that there was blunt force trauma to the head of C[...]. Her evidence is that the blunt force trauma could have been inflicted by any blunt object by hitting against the head or by falling. [106]        It must be borne in mind that the scene was fluid and could best be described as a commotion. The accused on the other hand, denied that he assaulted Ms A[...]. He was unable to explain why Ms A[...] was running. When it was put to the accused that Ms A[...] ran away to hide inside the main house, he responded by saying “That’s what she said…I can’t comment on that”. In considering the probabilities and the fact that Mrs Fienis had to literally kick down the door, and found the accused holding Ms A[...] by the collar, which is confirmed by the accused on his own version and corroborated by Ms O[...], there is no disputing that there was a physical encounter of some sort between the accused and Ms A[...]. This, inescapable conclusion, is reached notwithstanding Ms A[...] testifying that she was not physically assaulted. In this context the court accepts that Ms A[...] was not physically assaulted with the iron object, but that the accused inspired a belief that he would harm her using the iron object that he was wielding. [107]        As indicated earlier, contradictions per se do not render the version of a witness untruthful. I am of the view, that it lends credence to the versions of Ms A[...] and Ms O[...], whom I find gave an honest but imperfect account of what transpired that fateful night. This court is satisfied that they did not conspire nor exaggerate their recollection of events. I am satisfied that they were both honest and credible witnesses as there are safeguards that support their versions which includes, but is not limited to the following: (a)          Maria Fienis had to kick down the door of the Wendy house after hearing the screaming that emanated from the Wendy House; (b)          When she entered the Wendy House, the accused was holding Ms A[...] by the collar; (c)          That Ms A[...] and Ms O[...] had to seek refuge in the main house to the extent that Ms A[...] hid in a cupboard; In fact, Ms A[...] testified that the accused’s sister told her that the accused will hurt her. Ms A[...] orated that they put her in the wardrobe and closed the door. In her words… “Trap die deur toe van kas”. This, in my view, to ensure that the accused does not get to Ms A[...] to hurt her as per the fears expressed by Mrs Fienis, based on Ms A[…]’s version. (d)          In an attempt to further protect Ms A[...], the accused was informed, after he came to the main house looking for Ms A[...], that she was not there. If there was no threat to her, the Fienis’s would not have lied about her whereabouts to the accused. This is based on the accused own version that he went to the main house to enquire after Ms A[...] and what he was told, seemingly by Riaan Fienis, as well as the account of Ms O[...] in terms of what she overheard while she was in the room taking shelter. [108]        I am therefore satisfied that an iron instrument was wielded when the threat was made by the accused. The next question to be answered is whether a conviction on attempted murder could be sustained if there was no physical assault. I this regard, this court accepts that Ms A[...] was not assaulted with the iron object or beer bottle as per the indictment, which beggars the question as to whether the absence of an actual assault be sufficient to find the accused guilty of attempted murder.  It is trite that assault may be committed without there being any direct or indirect physical contact or impact. The essential requirements are therefore as follows: (a)          There must be a threat of violence against the person and (b)          It must be a threat of imminent violence. [109]        It is manifest that the accused inspired the belief in Ms A[...] that he would harm her as she testified that she became scared. This coupled with the ongoing attack towards her, in my view is sufficient to sustain a conviction, by virtue of the wrongful and unlawful conduct of the accused, however the question is which charge would these elements satisfy; attempted murder, assault with the intent to do grievous bodily harm or just common assault? [110]        Apart from the utterance, there is no other evidence to support any physical attack on Ms O[...]. Her evidence was that the accused was angry at her for not going with Derick Oosthun. The utterance was not only directed at Ms A[...] but to all the occupants including the children. It is uncontroverted that Ms O[...] was unharmed. She also did not testify that these threats inspired the belief that the accused would harm her, but jumped to the defence of Ms A[...] who was the recipient of the initial onslaught. The State failed to elicit more information regarding Ms O[...]’s intervention as she stated that “ons het gestoei met Derick na die deur se kant om uit te kom”. [111]        This presupposes that there may have been something more. When one wrestles “stoei”, it means to take part in a fight.  The dictionary meaning of wrestle is to grapple with one’s opponent and trying to force them to the ground. This court cannot convict based purely on an assumption. Ms O[...] was brave enough to go back to fetch her daughter B[...] and when she did, there was no further interaction between the accused and her according to the evidence.  The question to be answered is whether there is sufficient evidence before this court to sustain a conviction on attempted murder in respect of count 2. [112]        In considering the allegations made as per the indictment, the question arises whether the accused would have actually killed Ms A[...] and Ms O[...], had he not been interrupted or would he have only assaulted with the intent to do grievous bodily harm? The belief was inspired, in the case of Ms A[...]. It is evident that the accused’s actions proceeded a considerable way and was interrupted. In this regard, Ms O[...] testified that she held the accused so that Ms A[...] can get out. This is when Mrs Fienis kicked the door open and found the accused holding Ms A[...] by the collar. Who knows what the accused would have done next had Mrs Fienis not entered the Wendy House at the time when she did. Her evidence was that she tried to push the door open but could not open the door, so she resorted to kicking the door open. [113] The ultimate test also known as the equivocality test takes into consideration that the steps taken by the accused must have reached the point when they themselves indicate beyond reasonable doubt that he or she intended to commit the crime he or she is charged with attempting. [10] In this regard,  Watermeyer CJ in Schoombie stated: ‘ Provided always that his acts have reached such a stage that it can properly be inferred that his mind was finally made up to carry through his evil purpose he deserves to be punished because, from a moral point of view, the evil character of his acts and from a social point of view the potentiality of harm in them are the same, whether such interruption takes places soon thereafter or later.’ [114]        It is therefore incumbent on the court to apply the guiding principles set out in Schoombie , in respect of counts 1 and 2, taking into account all the circumstances of the case.   The accused commenced the consummation of the crime by declaring that he would kill those in the room while wielding the iron object (mikking / gesturing to hit), although on Ms A[…]’s version she was neither hit with a beer bottle or crowbar. The accused, according to Ms O[...] wanted to hit Ms A[...] with the beer bottle and ultimately hit C[...] with the beer bottle on his head. His ultimate objective seemingly was to kill, had it not been for the interruption of Mrs Fienis who came into the house when she did, and the actions of both Ms A[...] and Ms O[...] to try and disarm the accused and ward off the imminent attack. This act in my view is sufficiently proximate to the attack on Ms A[...] and amounts to a completed attempt at the very least on assault with intent to commit grievous bodily harm, by virtue of the instrument(s), albeit an iron object or beer bottle. I am therefore satisfied that the accused’s mind was made up as his actions were suggestive that he was in the process of and gestured that he would inflict physical harm. The fact that he missed Ms A[...] in my view does not exonerate his actions. The evidence further indicates that there was a wrestling of some sort. Had the iron object or beer bottle (the instrument) been a firearm, the inexorable conclusion would be that the accused would be guilty of attempted murder. [115]        It is trite that there can be an attempt to commit an offence without the element of an actual physical assault, if regard is had to the definition distilled earlier in this judgment.  There is a clear overlap between the crimes of assault and assault with intent to do grievous bodily harm. This matter therefore calls for a value judgment of a practical nature.  Consequently, on a conspectus of the evidence, I am satisfied that a substantial step was taken by the accused towards the commission of the crime of assault with intent to do grievous bodily harm in respect of count 1, being a competent verdict as the following essential elements are present: (a)          Unlawfulness; (b)          Intentional and (c)          Inspiring an apprehension that force would be applied. [116]        This court has already found that an iron instrument was wielded when the threat was made by the accused. To cement my conclusion, both Ms A[...] and Ms O[...] testified that they wrestled with the accused as earlier stated, which presupposes that there was some physical force exchanged during the altercation. I am therefore satisfied, in considering the totality of the evidence that the accused’s actions were unlawful and intentional and inspired the belief in Ms A[...] that force would immediately to be applied to her with the iron object, which satisfies the elements of assault with intent to do grievous bodily harm. [117]        In considering count 2, this court is enjoined to be cautious to apply the subjective test in respect of the count of attempted murder in respect of Ms O[...]. At the time when Mrs Fienis came into the Wendy House, the accused did not yet consummate his intention to physically harm Ms O[...], based on Ms O[...]’s own version.  I am therefore not persuaded that the state discharged the onus of proving attempted murder in respect of count 2 as the attack was not directed at Ms O[...] yet, even though the utterance was. It is clear that Ms O[...] jumped in to defend Ms A[...] and was seemingly not hurt in the process. Evaluation of the evidence on Counts 3 and 4 [118]        It is common cause that there is no eye witness account of what happened to F[...] and C[...]. The State’s case against the accused is purely circumstantial in nature as both Ms A[...] and Ms O[...] left the Wendy House, followed by Maria Fienis. [119] The matter of R v Hlongwane [11] crystallises that the correct approach is to consider all evidence "in the light of the totality of the evidence of the case".  The second principle which this Court must bear in mind in assessing all the evidence is the approach to be taken to inferences to be drawn. It is trite that inferences are not to be based on speculation but are to be grounded on fact. The seminal case of R v Blom [12] distils the courts approach to dealing with circumstantial evidence where the court held that there are two cardinal rules of logic as quoted with approval in the matter of S v Reddy & Others [13] which is also instructive on the courts approach when assessing circumstantial evidence where the court held as follows: “ In assessing circumstantial evidence one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true.  The evidence needs to be considered in its totality.  It is only then that one can apply the oft-quoted dictum in R v Blom 1939 AD 188 at 202-3, where reference is made to two cardinal rules of logic which cannot be ignored.  These are, firstly, that the inference sought to be drawn must be consistent with all the proved facts and, secondly, the proved facts should be such ‘that they exclude every reasonable inference from them save the one sought to be drawn’.” [120] It therefore behoves this court to consider the proved facts with due consideration of what was held in S v Van Der Meyden [14] where the following was stated: ‘… The proper test is that an accused is bound to be convicted if the evidence establishes his guilty beyond reasonable doubt, and the logic corollary is that he must be acquitted if it is reasonably possible that he might be innocent. The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is that the conclusion which is reached (whether to convict or acquit) must count for all the evidence. Some of the evidence might be found to be false; some of it might found to be unreliable; and some of it might be found to be only possibly false of unreliable; but none may simply be ignored.’ [121]        It is also uncontroverted that F[...] and C[...] was left in the Wendy House after Ms A[...] and Ms O[...] left to go into the main house. Ms O[...]’s testimony was that when she went back to fetch her daughter, C[...] was lying on the floor by the door. The accused’s version is that he stood outside for 5 – 10 minutes and then went to the main house where he knocked on the door and informed Riaan that he was leaving, presumably to look for Ms A[...]. It can be accepted that both Ms A[...] and Ms O[...] were in the bedroom. Ms O[...] testified as to what she heard while she was in the room hiding. [122]        Her evidence was that the accused knocked on the door. On the accused’s own version, he confirms that he knocked at the door. They differ on who opened the door, which in my view is not material.  According to Ms O[...], C[...] came through the window thereafter, “soos een wat hom deur die venster gegooi het”. Ms A[...]’s testified that while she was in the cupboard hiding, she heard crying, then she heard the lounge window’s glass breaking. According to her, that was the time when the accused threw her 18-month-old son, C[...] through the closed window. [123]        The defence argued that Mrs Fienis testified that C[...] came through the window. It was submitted that the Prosecutor did not exercise the full scope of examination in chief by following up on an open ended question such as inquiring how the child came through the window. The defence contended that the prosecutor did not ask the pertinent question as to who threw the child through the window. the defence submitted that the Prosecutor did not pursue this line of questioning not due to negligence or incompetence but rather because it would not have further the State’s case had they done so. [124]        Whilst is can be accepted that Ms A[...] and Ms O[...] did not see the actual manner in which C[...] came to be in the house, there is in my view sufficient collateral evidence that support this conclusion which includes: (a)                The shattered lounge window; (b)                That C[...] was found amongst the shards of glass on the floor; (c)                The independent witnesses who arrived on the scene found the child on the floor where there were shards of glass. [125]        In this regard, Ms Thompson, the Emergency Practitioner, testified that upon their arrival, she noticed the broken window and upon entering she notice a baby and a girl lying down on the floor. The boy was lying closer to the door. He was wearing a nappy. She observed that there was blood on his back. He was not moving at the time. He was lying on his stomach. According to Ms Thompson, there was a lot of glass lying in the vicinity where he was. [126]        I am therefore, satisfied that the inference sought to be drawn is consistent with all proven facts to suggest that C[...] had to have been thrown through the glass window.  In my view, based on these facts, no other reasonable inference can be drawn but that C[...] was thrown through the window. The question which remain is who threw him through the window. [127]        The accused version, which will be evaluated later in this judgment is that he left the premise and therefore it was not him. The defence makes the proposition that the murders could have been committed by someone other than the accused as the premises is not secured. There is no locked gate that would prevent outsiders from entry. [128]        The defence submitted that in the circumstances there are reasonable alternative possibilities open namely, that someone may have entered the premises after the accused left or may have been already hiding on the premises and that that person (or persons) is responsible for killing the children. I will deal with this more fully later in this judgment. [129]        On the evidence of Ms O[...], Derick Oosthun and one other unknown man had entered the premises on their own and walked to the Wendy House, which places at least two other persons on the premises that evening according to the defence. More especially as, Derick Oosthun was present at least twice. [130]        It is noteworthy that the defence would place reliance on Ms O[...]’s version who was called out by the accused as not being truthful. It also contradicts the accused’s evidence that Derick Oosthun never came into the house. According to the accused, Derick Oosthun waited in the vehicle. [131]        It was also submitted, in light of the fact that Mr Derick Oosthun was upset with Ms O[...] because she did not want to have sex with him may be plausible motive for being angry with her and wanting to take his frustration out by resorting to violence. The argument proffered that Derick Oosthun was drinking which could have made him violent could also hold true for the accused, who was also drinking. [132]        This hypothesis must however be tested against the proved facts, inclusive of the formal admissions and common cause facts already dealt with earlier in this judgment.  According to Ms O[...], Maria Fienis was standing in the living room and shouted “No Derick No!!”. C[...] was lying on the ground. He was crying and full of blood. When the police arrived, Mrs Fienis told the police officer to go and look how her brother stabbed the children. [133]        The defence argued that Mrs Fienis did not testify that she shouted words to the effect “No Derick No!!” It was further submitted that aside from Mrs Fienis stating that she saw the accused holding Ms A[...] by the collar, Mrs Fienis did not implicate the accused in the murders of F[...] and C[...] or attempted murders upon Ms A[...] and Ms O[...]. [134]        To recap, the court in the Section 190 Application, made the finding that sufficient basis was been laid for Mrs Fienis to be cross-examined on her statement; however, despite this ruling, the state abandoned its application in terms of Section 190 (2) to declare Mrs Fienis a hostile witness as she deviated from her statement. [135]        Mrs Fienis was never cross-examined by the defence. The defence however illuminated during argument that Mrs Fienis was confronted with her witness statement but she stated that the witness statement was incorrect in certain pertinent areas namely that she has seen the accused throw the child through the window and that the statement was taken under oath. In the trial within a trial it was held that the statement was indeed not taken under oath. It was furthermore highlighted by the defence in argument that the Prosecutor did not ask Mrs Fienis the relevant open ended questions in examination in chief such as why the relevant portion in her written statement was incorrect and why she had initially made that statement. Furthermore, the defence submitted the fact that Ms Maria Fienis written statement is incorrect is therefore left unchallenged. [136]        The defence highlighted that Mrs Fienis testified that she did not want to go to the separate entrance because “I don’t know who else is there at the back” which the defence suggests to be clear evidence that other people may have been present on the scene at the time of the incident which may have elicited evidence in favour of the defence. [137]        Counsel for the accused repeatedly referred to Mrs Fienis as a non-witness but selectively cherry pick which portions of her evidence are favourable for the defence case. In fact, Counsel for the accused in his address to the court submitted that Mrs Fienis’ credibility is destroyed. [138]        It is apposite to mention that the State did not pursue the Section 190 (2) Application. There was therefore no ruling made by this court in this regard. This witness’ viva voce testimony stands unchallenged as there was no cross-examination. This court is therefore beholden to exercise extreme caution under these circumstances and will not consider the uncommissioned statement of Maria Fienis, marked as Exhibit “F” as no probative value can be attached thereto. The court however still has the benefit of the evidence of independent witnesses, who testified as to what Mrs Fienis said either to them directly or which was heard by them on the day of the incident which, in the case of Sergeant Kobe, remains unchallenged. I will deal with these portions of the evidence during the course of this judgment where relevant. In other instances, the court finds corroboration in respect of Maria Fienis’ evidence, which I will also deal with later in this judgment which cements the reliability that the court may place on the evidence as it does not stand alone. [139] Whilst credibility and reliability are often synonymous with each other, it is my view that there may be a departure when portions of evidence are corroborated by an independent, credible witness, which will lend credence to the veracity of the evidence of a witness whose credibility may have been shaken, in order to safely accept same as being reliable. In this regard, such evidence will not stand alone, but will be underpinned by collateral evidence to strengthen the truthfulness thereof.  There must however be strong emphasis on approaching the evaluation of a such a witness’ testimony with extreme caution, in the interest of justice, taking into account the conspectus of the evidence in its entirety. [140] Whilst Mrs Fienis’s credibility was shaken, the approach as set out above will be applied, in the interest of justice with due regard to ensuring that there are safeguards to underscore the acceptance of such evidence in order to separate the tears from the wheat. [141] This court will proceed to evaluate the evidence in accordance with the guidelines set out in State v Hadebe and others [15] in dealing with  the correct approach for evaluating evidence with reference to Moshephi and Others v R [16] as follows: “ The question for determination is whether, in the light of all the evidence adduced at the trial, the guilt of the appellants was established beyond reasonable doubt.  The breaking down of a body of evidence into its component parts is obviously a useful aid to a proper understanding and evaluation of it.  But, in doing so, one must guard against a tendency to focus too intently upon the separate and individual part of what is, after all, a mosaic of proof.  Doubts about one aspect of the evidence led in a trial may arise when that aspect is viewed in isolation.  Those doubts may be set at rest when it is evaluated again together with all the other available evidence.  That is not to say that a broad and indulgent approach is appropriate when evaluating evidence.  Far from it.  There is no substitute for a detailed and critical examination of each and every component in a body of evidence.  But, once that has been done, it is necessary to step back a pace and consider the mosaic as a whole.  If that is not done, one may fail to see the wood for the trees.” Credibility and reliability [142]        At this juncture it would be apposite to consider whether Ms O[...]’s evidence insofar as it pertains to the utterance of Mrs Fienis to the effect “No Derick No!! and her report to the police can be safely accepted in light of Mrs Fienis’s recantation of her statement. As earlier stated, the collateral evidence that his court has accepted is that C[...] was thrown through the window. This beggars the questions as to whether Mrs Fienis’ identification of the accused through her utterance be sufficient to conclude that it was indeed the accused who threw C[...] through the window. I emphasise here that this is based on Ms O[...]’s evidence or version. [143]        The reliability of Ms O[...]’s evidence is therefore crucial, especially as she heard Mrs Fienis’ utterance and shortly thereafter, observed the body of C[...] on the floor, which events almost occurred contemporaneously. I pause here to mention that Constable Kobe related that Mrs Fienis told him that her brother threw the child through the window. His testimony in this regard was never challenged by the defence during cross-examination. This in my view, serves as corroboration from an independent witness whose evidence in this regard went unchallenged, and neither was the credibility or reliability of Constable Kobe’s evidence brought into question. He presented to this court as an independent, credible and reliable witness. The aspect regarding Kobe’s identification of the accused will be dealt with later in this judgment. [144]        Ms O[...] was confronted with her statement wherein discrepancies were pointed out. She confirmed that she omitted to include: “No, Derick, No”. In the statement of Ms O[...], Exhibit “E” the following is recorded: “ Zanre het gevra iemand moet haar kinders gaan haal, maar Derick se suster het gese nee hy gaan ons steek” [145]        Interestingly, the Defence only challenged this portion of the statement. Whilst the absence of the word to the effect “No, Derick, No”, is notable, it does not mean that it did not happen, as a statement may at times not contain every single detail of an event. The statement however reveals other aspects that serve to corroborate the circumstantial evidence in relation to counts 3 and 4 and direct evidence in relation to counts 1 and 2 respectively. As a starting point, if only this excerpt is considered, there is an utterance “hy gaan ons steek”. The Post Mortem report and viva voce evidence of Doctor Sherman support the findings that F[...] and C[...] were stabbed. In addition, a knife was found under the pillow of the bed on which F[...] was lying when she was found by Mrs Fienis, as depicted in the photo exhibit and forms part of the accused’s admissions in terms of Section 220 of the CPA. Furthermore, the actions of Mrs Fienis as earlier illuminated where she hid Ms A[...] in the cupboard for her own protection is clearly reinforced as she expressed her fears regarding the potential actions of the accused that he would hurt Ms A[...] as she stated during her testimony. [146]        The very statement which the defence used in an attempt to discredit Ms O[...], unequivocally portrays the accused as the aggressor. The statement records that the accused got angry and uttered words to the effect “hy slaan nou onse koppe sowel as onse kinders sin pap”. The statement goes further where Ms O[...] recalls that the accused “het vir haar gemik met die crowbar wat hy in sy hand gehad het.” The viva voce evidence of Ms O[...] describes something other than a crowbar, but indicated later in her testimony that she forgot the name of the instrument as earlier dealt with in my judgment. In my view, nothing turns on the accuracy of the description of the object as both descriptions describes an iron instrument. Both Ms O[...] and Ms A[...] are clear that the accused wielded an iron type object as per my earlier finding. [147]        Ms O[...] was honest about her using TIK on the day. She did not hide this fact which in my view, lends credence to her being an honest and truthful witness. Ms A[...] also confirmed using TIK that day. Ms O[...] testified that it made her calm, when she was asked about the effects of the drugs. Ms A[...] also conceded during cross-examination that she was already using drugs prior to meeting the accused and also during the time when they were in a relationship. The fact that Ms A[...] and Ms O[...] used drugs prior to the incident was never raised by the defence either during cross-examination or argument to suggest that it may have impaired their recollection of the events and thus impact an impact on their credibility and reliability. [148]        The manner in which contradictions are to be dealt with has been previously dealt with in this judgment and as such, does not require restating save to emphasise that contradictions are not always indicative that a witness is untruthful. Safeguards in the form of collateral or corroborative evidence invariably serves to lend credence to a witness’ testimony as in this case where Ms O[...] version saw the accused hitting C[...] with the beer bottle. As previously stated, there is corroboration in the form of independent evidence. The Post-Mortem Report – Exhibit D2, the skull examination of C[...], revealed that there was bruising on the inner aspect of the scalp. Furthermore, the brain was swollen and pale with no intracranial haemorrhages present. In addition, there was a Y-shaped tear wound on the frontal scalp with underlying left frontal bone fracture through the coronal suture and parietal bone extending to lambdoid suture of the skull. The wounds on the skull and head of C[...], serves as corroboration that he may have been hit with the beer bottle and thrown through the glass window, bearing in mind that C[...] succumbed as a consequence of all the injuries inflicted and not one injury in isolation as per the testimony of Dr Scherman. Timeline [149]         I pause here to deal with the timeline that the defence argued was not sufficiently established in order to draw the inference that the accused was the one who inflicted the injuries on F[...] and C[...]. The critical aspect, according to the defence is how much time elapsed on the state’s version between the knock on the door and the entry of C[...] through the window. This, it was argued, was never established by the state. It was submitted that the state had ample opportunity to establish the timeline but requested that the court infers that it was not done because it would not have benefited the state’s case. [150]        Counsel for the defence further contended that Ms O[...] testified that she had run into the main house and climbed on top of the cupboard when she heard the accused knock on the door and she heard Mrs Fienis open the door. Ms O[...] heard the accused ask where Ms A[...] was and Mrs Fienis informed him that she was not there. According to Ms O[...], the accused left and Mrs Fienis closed the door. Thereafter C[...] came through the window. In her words “it was like someone threw C[...] through the window”. Ms A[...] testified that she was in the cupboard for about 2 hours to which the Prosecution conceded that the witness was not good at calculating time. [151]        It is common cause that F[...] and C[...] were left behind in the Wendy-House with the accused. Ms A[...] testified that while she was in the cupboard, she heard crying, then she heard the lounge window’s glass breaking. That was when the accused threw her 18-month-old son, C[...] through the closed window. She narrated that she heard C[...] crying. Ms A[...] stated that she tried to get out of the cupboard to check why here children were crying. Eventually she did not hear F[...] crying in the background anymore. Ms A[...] and Ms O[...] could not see what was happening in the lounge as they were hiding in Maria’s room and relied on what they heard. When asked during re-examination whether Ms O[...] could see the accused walk away, she responded by saying “I heard the door being closed and that is how I knew that he walked away”. [152]        The accused on the other hand stated that he was standing outside the Wendy House for about 5 to 10 minutes and then went to knock on the door of the main house, whereafter he left. [153]        The fact that Ms A[...] indicated that she was in the cupboard for 2 hours, viewed holistically with the other evidence on record suggests that the probabilities lean more towards the series of events happening in a shorter period of time. This court finds corroboration for this conclusion in the following: (a)                Constable Kobe testified that he received a complaint on 1 May 2019 at around 2:30 a.m. that there was a fight at a H[…] Street address; (b)                Maria Fienis testified that she was woken in the early hours of the morning at around 2:10 on 1 May 2019; (c)                F[...] was declared dead on 1 May 2019 at 03h44; (d)                C[...] A[...] was declared dead on 1 May 2019 at 04h25; (e)                Sergeant Fortuin testified that the family of the deceased came into the charge office at 5:20am to inform them that the accused returned to the house. (f)                 On the accused’s version he returned to the Wendy House and at around 5 a.m. was awoken by people talking. [154]        It was Maria Fienis who testified that she was the one who called the police and if regard is had to the time when the call was made in relation to the time when she was woken by the screaming and commotion, then the incident of the child being thrown through the window happened within less than the 20 minutes from the time she was awoken to the time when the call was made. This accords with the sequence of events as described by Ms O[...]. Ms A[...] stated that she heard crying and then she heard the window breaking; she heard C[...] crying. The fact that Ms A[...] said that she was in the cupboard for 2 hours ought to be considered within the contextual scene because her exit from the room was prevented by the sister of the accused notwithstanding her attempts to see why C[...] was crying. She testified “I tried to get out to check why they were crying” She stated that it is only after she could no longer hear F[...] crying that Mrs Fienis let her out of the room. This is when they made the phone call to her mother. [155]        In any event, if regard is to be had to the declaration of the time of death of the children, by an independent source, and that by then F[...] was already deceased for an hour,  Ms A[...] could not have been in the cupboard for 2 hours. On the accused’s own version, it is therefore probable that the accused committed the murders between the time when Mrs Fienis, Ms A[...] and Ms O[...] left the Wendy house and the time when Mrs Fienis made the call to the police, bearing in mind that the accused stated he allegedly stood outside for approximately 5 to 10 minutes. Ms O[...]’s evidence was that she held the accused and Ms A[...] ran out to the main house. According to Ms O[...] she stated under oath “Derick het teruggedraai en in die kamer ingegaan” Ms O[...] stood at the door of the Wendy House and then went in to fetch her child. She testified that F[...] was in the room and C[...] was lying on the floor by the door. The accused, corroborates the version of Ms O[...], which lends credence to her version. In this regard, the accused testified that Ms O[...] returned to fetch her child. [156]        If consideration is had to the probabilities, it is unlikely that the accused would have left the children that he professed to care for immediately, especially as C[...] was on the floor. It is my view, that the only inference that can be drawn is that the accused, when he went into the Wendy House, it gave him the opportunity to finish what he threatened he would do. Ms O[...] places the accused inside the Wendy House and shortly thereafter C[...] is flung through the window and the police is summoned. [157]          In my view, a definite timeline has been established and in the context of the factual matrix, there is nothing untoward about Ms A[...] perception of the time lapse, given the traumatic sequence of events of that night. I make no negative inference in this regard as there is sufficient collateral evidence to support the inference that the accused was the last person left with the children, inside the Wendy House and had time enough to commit these heinous acts before leaving the property. However, it is incumbent on this court to consider whether these acts could have been perpetrated by someone else as suggested by the accused. Other Probabilities [158] This court is enjoined to consider the strength and weaknesses in the evidence and consider the merits, demerits and the probabilities. [17] This consideration includes the probabilities that it could have been someone other than the accused who committed the murders. During cross-examination it was suggested: (a)          that there is bad blood between the accused and the father of the children; (b)           demonstrated that there were other people who had access to the property such as Derick Oosthun and an unknown gentleman who accompanied the accused; (c)          Derick Oosthun was upset that Ms O[...] rejected his advances for sex (i)         Made in the car when Ms A[...] drew money; (ii)       Being rejected after two further attempts to persuade Ms A[...] for sex at the house of the accused (d)          That access to the property was unrestricted demonstrated by the version that Derick Oosthun arrived there with another person – that someone could come from the street to knock on the door and as such it could have been Derick Oosthun or the other man. (e)          Mrs Fienis described the property and explained that there is a fence around the main house. [159] This court is to have regard to the cumulative effect of all the inference. S v Reddy & Others (supra), referred with approval to R v De Villiers [18] where Davis AJA stated as follows: ‘ The court must not take each circumstance separately and give the accused the benefit of any reasonable doubt as to the inference to be drawn from each one so taken. It must carefully weigh the cumulative effect of all of them together, and it is only after it has been done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether the inference of guilt is the only inference which can reasonably be drawn. To put the matter in another way; the Crown must satisfy the Court, not that each separate fact is inconsistent with the innocence of the accused, but that the evidence as a who is beyond reasonable doubt inconsistent with such innocent.’ [160]        The court in S v Reddy & Others (supra), also referred to the remarks made by ‘ De Waal JP in R v Herbert 1929 TPD 630 at 636 ad Rumpff JA in S v Glegg 1973 (1) SA 34 (A) at 38H to the effect that in considering the effect of evidence, one need not be concerned with “remote and fantastic possibilities” and that it is not incumbent upon the State to eliminate every conceivable possibility that may depend upon “pure speculation”. The fact that a number of inferences can be drawn from a certain fact, taken into isolation, does not mean that in every case the State, in order to discharge the onus which rests upon it is ‘ obliged to indulge conjecture and find a answer to every possible inference which ingenuity may suggest any more than the court is called on to seek speculative explanations for conduct which on the face of it is incriminating’. [161]        It was submitted that it is uncontroverted that the premises are not secured as there is no locked gate that would prevent outsiders from entry. On the evidence of Ms O[...], Derick Oosthun and one other unknown man had entered the premises on their own and walked to the Wendy House, which places at least two other persons on the premises that evening. In fact, Derick Oosthun was present at least twice. This as earlier stated is not consistent with the accused evidence that Derick Oosthun never came into the house. The accused’s evidence was that Derick Oosthun waited in the car. [162]        Although it was contended that there are reasonable alternative possibilities open namely, that someone may have entered the premises after the accused left or may have been already hiding on the premises and that that person (or persons) is responsible for killing the children, is in my view speculative. [163]        Furthermore, would the fact that Derick Oosthun was upset give him any motive to harm the children of Ms A[...], and brutally so because Ms O[...] reneged on her promise to have sex with him? The evidence in no way suggests that Derick Oosthun was in any way confrontational. This is demonstrated by the fact that he sent the accused to Ms O[...] to do his bidding for him. [164]        The argument proffered that Derick Oosthun was drinking which could have made him violent could also hold true for the accused, who was also drinking. On the accused’s own version, he was drinking with his friends, which was corroborated by Ms A[...] and Ms O[...]. This too is highly speculative and again, does not align with the evidence viewed in its entirety. [165]        It is my view, that no motive in any one of the alternative possibilities proffered on behalf of the accused appears to be plausible if regard is to be had to the targets, namely 2 innocent children. Why would any one of those persons perpetrate the senseless killing of two helpless children.  It is my view that these alternatives, are not reasonable inferences. The matter of Reddy (supra) deals succinctly with how inferences ought to be considered and emphasises that it cannot be based on conjecture.  Therefore, this finding is concretised by the testimony of Ms A[...] that she heard Mrs Fienis inform Sgt Kobe when he arrived that her brother, the accused before court, threw the baby through the window. Sgt Kobe, an independent witness testified that when they arrived, a lady by the name of Maria Fienis said they had to come in immediately as there was something wrong. When he enquired what was wrong she told him that her brother threw the baby through the window. He testified that he saw blood and the window broken and the baby lying face down on his stomach on the floor. And in further support, Ms O[...] heard Mrs Fienis shout “No Derick, No”. The only inference to be drawn is therefore that it was none other than the accused who threw C[...] through the window. And just to add, to the inescapable conclusion derived at by this court that the accused before court committed these horrendous acts, Mrs Fienis took the police officer, Sgt Kobe “to go and look how her brother stabbed the children” according to the evidence of Ms O[...]. Even though Mrs Fienis recanted, and was labelled by the defence as a non-witness, her utterances to others implicating the accused before court, cannot be ignored. Failure to call available witnesses [166]        It was contended that Maria Fienis’ husband Mr Riaan Fienis who resides in the same home as her including Mr Derrick Oosthun could have been called by the State as witnesses because they were available and could have bolstered the State’s case. [167]        The defence argued that the failure to call these witnesses calls for a negative inference to be drawn; emphasising that the state as dominus litis bears the onus to prove its case by securing all available evidence. [168]        According to the state, Riaan did not provide a statement. It was submitted that Derick Oosthun and Linda were not originally mention in the statements. It was furthermore submitted that even if Riaan had made a statement, it would not have taken the State’s case any further in light of the problems the State encountered with Ms Maria Fienis. [169]        This court had a legal duty to ensure that evidence was placed before it for a just decision and invoked the provisions of Section 186 of Act 51 of 1977. The court held the view, during the course of preparing judgment in this matter that the interest of justice required that Derick Oosthun and Riaan Fienis be subpoenaed. After recalling Sgt Mbovane it came to light that Derick Oosthun has passed away and Riaan Fienis was unwilling to get involved in this matter. [170] In S v Teixeira [19] it was held that: ‘… in the circumstances the failure by the State to call the other witness to testify justified the inference that in State counsel's opinion his evidence might possibly have given rise to contradictions which could have reflected adversely on the credibility and reliability of the single witness. [171]        In applying Teixeira (supra) , to the matter in casu , the question to be answered would be whether the failure by the State to call Riaan Fienis to testify would justify the inference that in State counsel’s opinion his evidence might possibly have given rise to contradiction which could have reflected adversely on the credibility and reliability of the single witness. In this matter Ms A[...] and Ms O[...] did not observe anything, which means that the only other witness that may be contradicted would be that of Mrs Fienis, whose credibility was already shaken. In my view, after establishing that Mr Riaan Fienis indicated that he did not wish to be involved, I am not persuaded that his evidence would have been of assistance for a just decision in this case. [172]        Consequently, I make no adverse inference for the failure to call these witnesses as the State is dominus litis and there appears to be a plausible reason why these witnesses were not called. No DNA evidence [173]        Counsel for the accused, submitted that although the accused’s clothing was taken for analysis, there is no report to confirm the presence of blood transfer. It does however bear mentioning that a grey hoody was retrieved from the room. Although the Investigating, Officer, Sgt Mbovane testified that he leant that the hoody belonged to the accused. This evidence is hearsay and stands uncorroborated. However, a grey hoody was found at the scene, and if inferential reasoning is applied, it is possible that the hoody belonged to the accused because Ms A[...] and Ms Orien ran out of the Wendy House. If on the theory proposed by the accused that someone else perpetrated the crimes, then it is unlikely that the hoody would have been left behind.  These are all aspects that were not explored in any way by the Prosecution. The court is however beholden to consider the evidence cumulatively.  In this regard, this court may consider this evidence as it was formally admitted by the accused in terms of Section 220 of Act 51 of 1977. In this regard the accused stated as follows: ‘… 8. The notes, fact and findings noted in the affidavit by ANUNCHIA LYNN KOTZE dated 16 May 2019 are true and correct. EXHIBIT B refers. In   addition, I admit: 8.1.      The notes, facts and findings noted in the ‘Key to Photos’       attached to the aforementioned affidavit of ANUNCHIA LYNN   KOTZE dated 14 May 2019 are true and correct. 8.2.      The photo album, photographs 1 – 69, taken by ANUNCHIA LYNN KOTZE on 1 May 2019 correctly depicts the crime scene    and the bodies of F[...] W[…] A[...] and C[...] A[…]. 8.3       The noted facts and findings noted in the affidavit by   ANUNCHIA LYNN KOTZE dated 7 May 2019 are true and   correct….’ [174]        The defence argued that Mr Daniels, from the Vredenburg Forensic Pathology Laboratory testified that given the amount of blood on the scene that anyone carrying the child would have had a high likelihood of transfer, Furthermore, Dr Scherman testified that the assailant must have been in close proximity to the children whist stabbing them as this would have led to the transfer of blood in those circumstances. It was argued that the State never placed in dispute what the accused was wearing nor that he had changed his clothes and shoes after he left the premises. It was submitted that it is highly likely that had the accused perpetrated the murders there would have been blood on his clothes but none was found. [175]        Sergeant Mbovane was recalled to clarify whether the specimens collected at the crime scene referenced in Exhibit “B” has been sent for analysis. It came to light that the DNA results became available at a very late stage and it is apparent that the outcome of the result would not have assisted the State’s case. It must however be born in mind that the absence of blood on the clothing the accused was wearing does not exclude the possibility that the clothing worn by the accused was changed. Whilst the outcome of the DNA may have been of assistance to the Court, with or without the DNA evidence, there is sufficient collateral evidence to infer that it could only have been the accused who committed these heinous acts as he had motive and opportunity. DNA is not a prerequisite to prove that the accused was the one who murdered F[...] and C[...]. Count 5 - Resisting Arrest [176]        According to the indictment it is alleged that the accused did unlawfully resist or wilfully hinder or obstruct a member of the Service, to wit Constable Marcell Fortuin in the exercise of his powers of the performance of his duties or functions or did wilfully interfere with the said member or his uniform or equipment or part thereof, to wit by refusing to open his shack upon request from the police official and or threatening to hit the police official with a piece of metal. Evaluation of the evidence on Count 5 [177]        The submissions made by the State and Counsel for the accused during the application for discharge in terms of Section 174, is worth restating. Counsel for the accused contended that there were 3 police officers on the scene of arrest and 2 of the police officers did not corroborate the first police officer in material respects. The police did not identify themselves as police officers because of the chaotic scene. The accused’s version is that he was afraid and barricaded himself in the house. Counsel for the accused submitted that there is sufficient reasonable doubt that there were police on the scene. [178]        Furthermore, it was submitted that there was no corroboration from his colleagues that Sergeant Fortuin wrestled with the accused. It was furthermore contended that the basis of the resisting arrest charge is the most important factor which is to be taken into consideration.  In further augmentation, it was mooted that if it happened it would have been expected of them to have seen it and support the evidence of Sergeant Fortuin. [179]        Additionally, Counsel for the accused highlighted the improbabilities insofar as it relates to Sergeant Fortuin sticking his head in through the door. It was submitted that there isn’t evidence to secure a conviction as it would have been expected that the witnesses would have been led on this important aspect and it wasn’t done, further submitting that it is because the police could not corroborate it. [180]        Counsel for the State on the other hand submitted that the accused was aware that the person at the door was a police officer as Sergeant Fortuin was in dressed in full police uniform. According to Sergeant Mbovane, the accused look through the small window of the door and should have been able to see that it was police. The police had to use minimum force to effect the arrest. Counsel for the State contended that the accused did not willingly surrender. It was furthermore argued that his actions were telling. The accused knew that the police had arrived and he refused them access to his house. [181]        It is common cause that the scene was chaotic and that there were community members who needed to be controlled in order for the police to effect the arrest of the accused and safely take him to police vehicle. According the Sergeant Fortuin, he used his shoulder to try and get the door open. In fact, the evidence is that he ran towards the door to force the door open which caused the person behind the door to fall over and move away from the door.  It is also uncontroverted that the accused, on his own version pushed the door to prevent access being gained. It was furthermore conceded that the police did not announce themselves. Counsel for the accused submitted that there was no corroboration for the version of Sergeant Fortuin. [182]        The test enunciated in the matter of S v Bruiners en Anders (supra) as earlier referenced explicitly sets out what the court is to have regard to when the evidence of witnesses differs in respect of the same incident. The court is enjoined to have regard to the evidence as a whole and evaluate such evidence in order to establish whether such differences were sufficiently material to warrant the rejection of the State's version. [183]        Sergeant Fortuin was dressed in full police uniform. It may be so that initially the accused was not aware that the police were at the door, but at some point this awareness had to have shifted. Pepper spray had to be used as well as force to open the door in order for the police to gain access to the house. On the version put to Sergeant Fortuin, the accused let go of the door because of the pepper spray that was used. The accused testimony was that he let go of the door after what he describes as being teargas, was sprayed. The accused did not dispute that pepper spray was used. On the accused own version, he refused to open his door.   The accused on his own version corroborates the version of Sergeant Fortuin. [184]        The testimony of Sergeant Fortuin was that the accused almost struck him with an iron pole. The accused denied having an object in his hand as per the testimony of Sgt Fortuin. It was argued that it is improbable that police officers would have poked their head through a hole and subject themselves to danger. This may not have been a wise thing for the Police Officer to have done, however, the situation was such that the accused was pushing the door preventing the police from gaining access to the Wendy House. Again, the court cannot view this incident in isolation, but has to consider the evidence as a whole.  If regard is to be had to the probabilities, an iron object was wielded when the accused initially launched an attack on Ms A[...] and Ms Orien. This court has already found that the accused indeed wielded an iron object, which object was on a balance of probabilities still in the Wendy House by the time the police arrived. This event, in my view, further serves as corroboration in respect of the preceding events upon which counts 1 and 2 are centred, as set out in the indictment. I am satisfied that there is sufficient collateral evidence to confirm that the accused was in possession of an iron object. Again, whether it is a pole or described as something else does not disturb the credible evidence already on record. This court accepts that there was indeed an iron object in the Wendy House, which was further used in the commission of the offence as set out in count 5 of the indictment. [185]        The accused denied that he wrestled with Sgt Fortuin as per his testimony to which he responded “He is telling lies sir”. Sgt Fortuin pertinently stated that the accused was trying to get away which he was trying to arrest him. He explicated that they grabbed onto each other. Sergeant Fortuin explained what method he had to apply to get the accused off-balance in order to subdue the accused to effect the arrest.  According to Sgt Fortuin, he was only subdued after he was taken off balance which cause the accused to fall. It is evident that the accused did not surrender when he at that stage had to have known it was the police as Sgt Fortuin was dressed in full police uniform. Sgt Fortuin could not have been mistaken for a civilian at that stage. [186]        Sergeant Mbovane testified that the accused was looking through the small window of the door, which infers that he should have realised the police were there and nonetheless refused the police entrance to the house, had it not been for the pepper spray that was used. The accused denied Sgt Mbovane’s testimony that he peeped through the window of the door. [187]        The scene was by all accounts chaotic. It was contended that the accused’s life was in danger from members of the public. A further consideration is that there was a concession by the police that they did not announce themselves as there was no time for that. Whilst this may have been so in the beginning, at some point the accused must have realised that police were trying to get into the Wendy House to effect his arrest, as earlier stated. If on the accused’s version Sgt Fortuin’s firearm was drawn, which was denied by Sgt Fortuin, why did the accused not surrender. The accused’s version was “The policeman then pushed open the door and he told me to hands-up”. [188]        It is apposite to mention that Sgt Joubert explained that Sgt Fortuin and Sgt Mbovane managed to get the suspect under control and place him under arrest. This presupposes that the accused did not willingly co-operate. There was no cross-examination by the defence of this witness. [189]        On a conspectus of the evidence, this court rejects the accused’s suggestion that he was unaware that he was confronted by Police Officers.  This court finds that the accused hindered Sgt Fortuin in the exercise of his powers of the performance of his duties or functions and wilfully interfered with the said member by refusing to open his shack upon request from the police official and threatened to hit the police official with a piece of metal as set per the indictment. Failure by Prosecutor to put the state version to the accused [190] The court was referred to the matter of Tuta v The State [20] where the Constitutional Court held that ‘ [t]he prosecution must put its case to an accused. A failure to do so, or to do so sufficiently, will have a bearing upon the trial court’s assessment of the evidence led at trial.’ The facts of this matter is however distinguishable as the intervention of which the applicant complained about in the Tuta matter, was the curtailment of the prosecution’s cross-examination of the applicant. This curtailment was what the Constitutional Court referred as a ‘ disability placed upon the prosecution. The prosecution sought to put its case to the applicant but was prevented further from doing so.’ [21] It is apparent that the trial judge intervened during  cross-examination. Of seminal importance is that the interference would have an effect of the assessment of all the evidence before the trial court.  The Constitutional Court held that ‘ Such an assessment amounts to an appeal on a question of fact, a matter outside the jurisdiction of this Court.’ [22] Emphasis was however placed on the trite legal position that the state must discharge its burden of proof. [191] In casu the defence argued that the Prosecutor failed during cross-examination to put to the accused that he murdered the children, which was submitted to be a material omission because the version of the state was not put. It was furthermore argued that the prosecutor did not put it to the accused that it could only have been him who murdered the children. Counsel for the accused contended that in light of the Prosecutors vast experience that this was not done out of negligence or lack of ability, but because the Prosecutor in good conscience and in the best traditions of his office could not put a version when he was aware that he did not establish the evidence.  It was argued that the Prosecutor’s “failure” to do so amounts to a tacit concession that the state had failed to make a case against the accused. [192]        It is interesting that the Defence argued that the Prosecution did not put its case to the accused when the defence did it while leading the accused during his evidence in chief. These are some of the questions that were put to the accused by his Counsel while leading him in evidence in chief: (a)          F[...] said you had a crowbar in your hand at the time of the argument; (b)          C[...] said it was an iron used for fire place; (c)          Did you have such an object in your hand; (d)          Ms O[...] said you hit C[...] on the head with a beer bottle; (e)          Testimony was that there was a wrestling with F[...]; (f)           Did you wrestle with C[...]; (g) Did you have any motive to kill the children (my emphasis); (h)          The testimony was that you looked through the window; (i)            You had a hollow pole; (j)            Allegation is that you wrestled with police officer; (k) You said you feel you can kill her, F[...] and C[...] (my emphasis); (l)           When you knocked on the door, Riaan opened the door, where were the children; (m)        What was the state of the children? [193] It is my view that the State need not have put the same questions to the accused which were already asked and answered, in anticipation of cross-examination, when the accused’s evidence in chief was led. I therefore do not agree with the Defence submission that the Prosecutor’s “failure” to do so amounts to a tacit concession that the state had failed to make a case against the accused. In my view, this reasoning is a far-stretch and baseless. In any event, the accused’s defence is a bare denial, save for the admissions made by him in terms of Section 220 of the CPA. In R v De Villiers [23] it was held that a Court should not consider each circumstance in isolation and draw inferences from each single circumstance.  The onus on the State is not to prove that each separate item of evidence is inconsistent with the innocence of the accused, but that taken as a whole, the evidence is beyond reasonable doubt inconsistent with such innocence. Evaluation of accused’s version [194] In the matter of R v Difford [24] , the court held that: ‘… It is not disputed on behalf of the defence, that in the absence of some explanation, the court would be entitled to convict the accused. It is not a question of throwing any onus on the accused, but in these circumstances, it would be a conclusion which the court would draw, if no explanation were given. It is equally clear, that no onus rest on the accused to convince the court of any explanation to be improbable, the court is not entitled to convict, unless it is satisfied, not only, that the explanation is improbable, but beyond any reasonable doubt, it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to be acquitted.’ [195] The accused’s version is one of a blanket denial of all the allegations, save for admitting to common assault in respect of Ms A[...] and admission in terms of Section 220 as previously stated. It is trite that there is no onus on the accused to prove the truthfulness of any explanation which he gives or to convince the Court that he is innocent.  Any reasonable doubt regarding his guilt must be afforded to the accused. [25] The test has been succinctly enunciated in S v Jaffer [26] where the Court held: “ The test is whether there is a reasonable possibility that the accused’s evidence may be true. . . the court does not have to believe the accused’s, still less does it have to believe it. It is sufficient if the court thinks that there is a reasonable possibility that it might be substantially true.” [196]        In S v Kubeka 1982 (1) SA 534 (W) at 537 F-H, the Court held in regard to the version of the accused: ‘ Whether I subjectively disbelieved him is, however, not the test. I need not even reject the State case in order to acquit him. . .  I am bound to acquit him if there exists a reasonable possibility that his evidence may be true.  Such is the nature of the onus on the State.’ [197]        The accused elected not to disclose the basis of his defence, which is his right to do because no onus rests on him to prove his innocence. However, when as in this case, an alibi defence is put up, it would have been expected that the accused would immediately at the time of his arrest inform the police of his alibi so that they could follow it up. It is only during the course of the hearing that his version was disclosed, namely that he did not murder F[...] and C[...] and that he left the property and spent time at Linda’s house before returning to his place of residence. [198]        The first time that the alibi defence is introduced is when it was put to Ms A[...] (a)          “Accused denies that he attempted to threaten your children” (b)          “He says he has no motive to kill or injure them because he loved them” (c)          “My client does not know who attacked your children because once he left the premises and until he returned anyone could have come onto the premises” [199] It is trite law that where an alibi is raised there is no burden on the accused to prove his alibi. The onus is on the state to prove his alibi is false. The alibi is to be considered in the light of all the evidence in the case. In Thebus & Another v The State [27] the central issue raised by the appeal is whether an adverse inference may be may be drawn from a failure to disclose an alibi prior to trial.  The court held that in this regard, three questions arise being whether it is permissible to: (a) draw an adverse inference of guilt from the pre-trial silence of an accused, (b) draw an inference on the credibility of the accused from the pre-trial silence and (c) cross-examine the accused on the failure to disclose an alibi timeously, thus taking into account his or her response. [200]        The accused was never challenged about his failure to disclose an alibi timeously and therefore the court does not have the benefit of hearing his response in this regard. However, based on the earlier finding of this court that it was the accused who committed the acts of murder on F[...] and C[...] prior to him exiting the premises. Where he ultimately went, is in my view, of no consequence. The inference that this court draws from the proven facts is that the accused’s exit from the property was not to look for Ms A[...], but to remove himself from the crime scene and return later so as to create an alibi for himself. He makes no exculpatory statement to the police to exonerate himself, instead, his alibi is proffered during court proceedings, years after the incident which is hardly sufficient time for the state or police to follow up or investigate the alibi. On this basis alone, the accused’s version falls to be rejected with the contempt it deserves. [201]        It is however apposite to mention that although Ms O[...] confirms that the accused was at Linda’s house, this had to have been based on hearsay evidence and cannot serve to corroborate the accused’s version in this regard. There is no dispute that the accused walked to Linda’s house and returned later. The accused however disputes that he saw a police vehicle passing him. Counsel for the accused argued that Constable Fortuin’s (erroneously noted in the heads of argument as it was Constable Kobe who testified about seemingly seeing the accused), testimony that he had seen the accused in the street cannot be relied on for the following reasons: (a)          He may have seen the accused’s brother Troy; (b)          He was influenced afterwards; (c)          He conceded that it could have been the accused’s brother. [202]        Constable Kobe did not mention that the man that they drove past was the accused. He stated that he testified as he recorded the events in his statement. He furthermore indicated that he only made the connection after the accused was brought into the police station, bearing a stark resemblance to Troy, who happened to be the accused’s brother. He testified that in 2012, he was in a relationship with the sister of Troy’s wife. [203]        The version of the accused is that it was not him and that he left the children unattended, after allegedly alerting Riaan that he was leaving. Counsel for the accused challenged the accuracy of Constable Kobe’s connection between the person they had past while they were on their way to the scene on the basis that it was not mentioned by Constable Kobe in his evidence in chief and because of the distinct differences between the accused and Troy pointed out by the defence such as, Troy being older, balding and taller than the accused. Troy is more stout than the accused and the accused has tattoos and Troy not having tattoos. Constable Kobe testified that the accused was also fatter at the time. According to Constable Kobe, the resemblance was so similar that when he saw Troy after the arrest of the accused, he stopped to ask whether it was the accused who was already released and discovered that it was Troy. It was put Constable Kobe that the person he passed on the way to the scene could have been Troy and he conceded that it was possible. Initially when the accused was arrested he thought it was Troy and was informed by Sgt Franklin that it was in fact Troy’s brother that was arrested. [204]        On court’s question in clarification it came to light that Constable Kobe was able to take a good look at his face because they were not able to travel to fast on that road because there are speed humps and the street is well lit. [205]        The Court allowed Counsel for the defence to ask a question he omitted to ask in evidence in chief and allowed State to ask questions if necessary which wasn’t done. It was put to the accused that the Police Officer testified that they drove past him while they were on their way to the house. He denied that there was any police van that he walked past. [206]        Counsel for the defence argued that a cautionary approach must be applied to Constable Fortuin’s “Kobe” identification by his own testimony in light of the opportunity for observation, that his mind was elsewhere and he was later influence which makes all these factors taken together rendering his identification as unreliable. [207]        I am not satisfied that the identification of the person who was walking has been sufficiently proven. In any event, the evidence of Constable Kobe does not further the state’s case in this regard, as there is no dispute that the accused walked to Linda’s house and returned to his Wendy House later. Ms O[...] at some point during her testimony also concede that the accused had been to Linda’s house, although this is purely based on information after the fact as earlier stated.  Therefore, nothing really turns on whether Constable Kobe drove past the accused or not. Letter written by the accused [208]        I now deal with the letter written by the accused to the Ms A[...]’ mother expressing his love and concern about Ms A[...]. In the letter, the accused acknowledges that he caused her deep hurt. He goes further to say he will ask her (Ms A[...]) for her forgiveness when he sees her again. It is apparent that he wanted a face to face opportunity to see Ms A[...] so that he could answer questions she may have for him. [209]        The accused was cross-examined concerning Exhibit C, being a letter penned by himself. He testified that he could not remember the date he wrote the letter. He stated that it was at the time when he was still at Malmesbury prison. He wrote the letter after receiving a visit from Ms A[...]’ mother. He expressed surprise about the visit. When asked about the content of the letter he stated he was only referring to the things that happened. He denied that he put the letter as if he was the cause of what happened to which he responded – “I am expressing I am sad about what happened – not that I caused it”. When asked about what he was going to ask her he responded “if she came to me I would have asked her who else was in the shack at the time when I wasn’t there on the 1 st of May because Derick and Boeta was there and he wasn’t there – she never spoke about that” [210]        This court is acutely aware that this letter cannot be regarded as an admission or confession, however, I am enjoined to consider the cumulative effect of all the evidence when dealing with circumstantial evidence. The approach to be applied is not that each separate item of evidence is inconsistent with innocence of the accused, but only evidence taken as a whole is beyond reasonable doubt inconsistent with such evidence. Discussion [211]        All the state witnesses made a good impression on the court. Court observed that the Ms A[...] became emotional during her testimony. Whilst trying to remain strong, her eyes welled up with tears as she recounted the events of that night. C[...] was very nervous. The court observed the following gestures, namely that she rubbed hands together, grasped / clasped hands, slight tremble in voice, nervous shaking, rubbing motion on upper thigh, she rubbed her forehead and rubbed stomach nervously. She became very emotional when she started speaking about the incident to the extent that the court had to adjourn to give her an opportunity to compose herself. [212]        Ms A[...] remained steadfast that the version of events as she testified happened even when it was put to her that Counsel for the Defence will argue that it did not happen and the suggestion made that Ms O[...]’s version was a bid to cast suspicion that the accused was the one who threw C[...] through the window. [213]        Both Ms A[...] and Ms O[...] testified in a clearly and logically and were able to give a chronological exposition of the events. I find that these witnesses were honest witnesses. They could have exaggerated their account of what happened. Ms A[...] for examples informed the court that she was not assaulted, when she could easily have done so. It was put to Ms O[...] that Ms A[...] never told the court that the accused hit her with the iron, to which she responded, “I only told what I saw”. [214]        The fact that Ms A[...] did not see the accused hit C[...] with the beer bottle is in my view, a demonstration of her honesty. The independent Post Mortem report bear this out. Ms A[...] did not need to have seen this for it to have happened. As earlier stated, the possibility that C[...] was struck with the beer bottle cannot be excluded as there is no disputing that the injury to C[...]’s head was caused by blunt force trauma. Ms A[...] and Ms O[...] did not come to court to fabricate a story against the accused. They came to court to tell the court what they experienced and observed and cannot be faulted for the discrepancies in their testimony which demonstrates their independent recollection of the events. [215]        The accused did not make a good impression on the court. He didn’t want the mother of Ms A[...] to be in court. On the first day of the proceedings he pulled up the buff he was wearing to where only his eyes were showing. [216]        There are a number of improbabilities in the accused’s version, some of which have already been dealt with earlier in this judgment and some which may be worth reiterating. A child of 18 months and 3 years old respectively, in the next room right next to the kitchen where the arguing allegedly happened, would most certainly not have slept through this commotion. If the level of the arguing woke Mrs Fienis up who was asleep in the main house, then it is highly probable that the children who were in the next room according to the accused, would have woken up because of the commotion. [217]        The evidence of Ms O[...] was that the accused hit C[...] with a beer bottle over his head. When she returned to fetch her child, C[...] was on the floor. Surely have been crying especially if regard is to be had of the nature and extent of the injuries to his head as recorded in the Post Mortem report. [218]        The accused evidently, showed no compassion towards C[...] who was on the floor as on his version, he was standing outside and then went to inform Riaan that he was leaving. On his version, he never checked to see if the children were okay who on his version were inside the Wendy House. During cross-examination the accused was asked: “It was night – were you not concerned about their safety and take them to the main house? To which he responded that he did not think about that at that moment. [219]        The testimony of Ms A[...] was that while she was in hiding at Maria Fienis’s house, she heard F[...] crying and then the crying stopped. The accused says he stood outside the shack for 5 – 10 minutes. Why did he not console the children if he claims to have been that loving, caring father figure? Again, according to Ms O[...], the accused returned to go inside the Wendy house. The 5 – 10 minutes’ window period of which the accused makes mention, in my view accounts for the time it took for the accused to harm the children, knocked on the door of the main house and before exiting the property thereafter propelling C[...] through the glass window. [220]        The accused stated that he went to the main house to enquire about Ms A[...]. His brother-in-law Riaan said she was not there. He then informed Riaan that he will look for her whereabouts. The accused stated that he took a walk down the street.  If the accused was concerned about Ms A[…]’s whereabouts, why does he not go to her parent’s house which would have been an obvious place to enquire. After all, the accused was no stranger to her father as they were friends and he could have asked them to assist him to find her; that is if he was genuinely concerned. Instead, the accused stated that he went to Derick Oosthun’s house and when he arrived there he noticed that the car was not there so he went to Hopland, to Linda’s house where he was looking for Bronwyn. In my view, it is improbable that he would walk the streets at that time of the morning looking for Bronwyn. Yet, he testified that he left the premises to look for Ms A[...] because Riaan told him that she was not there after he enquired about her whereabouts. It seems as though he completely forgot about looking for Ms A[...] as earlier stated. [221]        The accused explanation was that he and Bronwyn had made plans to meet earlier. Given that it was in the early hours of the morning when he left, why would he only then remember that he had arranged with Bronwyn earlier that he should come and look for him at Linda’s house. [222]        What appears to be ominous is the fact that the accused got angry because Ms O[...] wouldn’t go with Derek Oosthun, knowing that Ms O[...] was engaged to Bronwyn with whom he purportedly had plans to see later that very evening. [223]        Bronwyn and Ms O[...] have a daughter together. The daughter of Bronwyn and Ms O[...], B[...], was there in the Wendy House with them when the accused got angry about her changing her mind to go with Derick Oosthun. The threat uttered according to Ms O[...] included all the children. Fortunately, she had the presence of mind to turn back and fetch B[...], who may very well have been another fatality at the hands of the accused. [224]        According to the version of the accused, he told Derick Oosthun that he would go back to try and talk to Ms O[...]. The accused does not say what happened to Mr Oosthun. Presumably he had to be waiting for an answer. Derick Oosthun, disappears out of the narrative completely. [225]        The accused returned to his Wendy House just after 5am. Ms A[...] and the children were not there. He was asked whether he went to the main house to enquire about them, to which he responded “No I did not go again”. He explained he entered the shack, closed the door and went to lay on his bed and he dozes off. He does not look for them or enquire about Ms A[...] or the children’s whereabouts as his testimony was that the Wendy House was empty. The children were not there, yet he left the children, on his version, unattended. [226]        He had previously demonstrated a compassion for the children through what he would do for them, support them, make bottles for them, change their diapers. In respect of Ms A[...], he demonstrated his protection when her ex-boyfriend tried to take her from him while they were on their way to her parents’ house. Yet, this night, he does not act like the protective, loving caring boyfriend and father figure. Instead he sits chatting with Linda, then goes home and falls off to sleep at a place that was home to Ms A[...] and the children and needless to say, a crime scene created by himself just a few hours before he returned to the Wendy house. [227]        As earlier stated he came back to the Wendy House, makes no attempt to establish where the children are. The only inference is that he already knew that the children were no more, as C[...] was already thrown through the window and F[...] was stabbed multiple times, with zero chance of survival. [228]        The crime scene photos depicted the bed where F[...] was found and the pillow under which a knife, presumably the murder weapon was hidden. There are visible blood stains on the bedding. Surely the accused should have noticed this. His evidence was that when he arrived home after coming from Linda it was dark, he did not notice anything untoward. In considering the probabilities, this version does not appear plausible especially as none of the Police Officer testified that the room was dark when they apprehended the accused. The accused must have seen the blood. [229]        It is furthermore apparent that the accused did not even ask the police why he was being arrested. In my view, the reason is obvious. It’s because he already knew why. He was arrested at a crime scene he had created. At his hands and of his own doing. Conclusion [230] To borrow from the writers “ It is folly to think that circumstantial evidence means some sort of weak to less reliable evidence” [28] would be fitting for a matter such as this. Just because no eye witness has seen what happened, does not mean the missing pieces of the puzzle cannot be found when looking at the mosaic of evidence that this court was presented with. It is trite that proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. [29] [231]        This court, being alive to the accused’s fair trial rights must ultimately ensure that justice will be done in the end result. After considering the evidence in its totality, the court finds that the only inescapable inference that can be drawn is that it was the accused who murdered F[...] and C[...], which is consistent with all the proved facts. The court rejects the accused’s version with the contempt it deserves. He wanted the court to believe that it could have been someone else who perpetrated these heinous and senseless acts on these two innocent, defenceless children. I have no hesitation but to find that it is the accused who, after Ms O[...]’s rejection of his foreman, Derick Oosthun, to have sex, and the subsequent interference of Ms A[...] took out his frustrations on the children by brutally stabbing them, F[...] 19 times and C[...] 14 times. The only plausible reason why Ms A[...] no longer heard F[...] crying was because the accused had taken care of F[...]’s crying by ensuring she would never cry again. The accused also ensured that he delivered the already fatally injured C[...], who in all probability was crying and needing his mother, through the glass window, before exiting the property. [232]        Had it not been for Mrs Fienis’ intervention, more damage may have been done as the accused made his intention plain that he would kill Ms A[...] and the children and he did exactly that. Fortunately, Ms A[...] came away unscathed. [233]        After carefully considering all the evidence, I am satisfied that the state succeeded to prove its case against the accused beyond a reasonable doubt in respect of counts 1 on the competent verdict of assault with intent to do grievous bodily harm, count 3, count 4 and count 5. Verdict [234]        In the result: 1. Count 1 - attempted murder Guilty on the competent verdict of assault with intent to do grievous bodily harm. 2. Count 2 – attempted murder The accused is acquitted 3. Count 3 – murder Guilty, murder, read with the provisions of Section 51(1) of the Criminal Law Amendment Act 105 of 1997 . 4. Count 4 – murder Guilty, murder, read with the provisions of Section 51(1) of the Criminal Law Amendment Act 105 of 1997 . 5. Count 5 – resisting arrest Guilty as charged. P ANDREWS, AJ Acting Judge of the High Court [1] 2003 (1) SACR 134 at 140 A-B, see also S v Van der Meyden 1991 (1) SA SACR 447 (W) at 448. [2] 2001(4) All SA 279 (SCA). [3] 1998 (2) SACR 432 (SE). [4] 1945 AD 541 at 545 – 6. [5] Burchell J ‘ Principles of Criminal Law’ (Juta) 5 th Ed. [6] Page 547. [7] Page 550. [8] Ibid, page 551. [9] 1990 (1) SACR 95 (A). [10] Ibid 553. [11] 1959 (3) SA 337 (A). [12] 1939 AD 188. [13] 1996 (2) SACR 1 (A) 8 C-E [14] 999(1) SACR 447 (W) at 449c-450b. [15] 1998 (1) SACR 422 (SCA) at 426E-H [16] (1980 – 1984) LAC 57 at 59F-H. [17] S v Trainor 2003 (1) SACR 35 (SCA) para 9; S v Chabalala 2003 (1) SACR 134 (SCA) para 15. [18] 1944 AD 493 at 508 – 9. [19] 1980 (3) SA 755 AD. [20] (CCT 308/20) [2022] ZACC para 33; See also Small v Smith 1954 (3) SA 434 (SWA) at 434E-G, where Claassen J held ‘ It is my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns the witness and if need be to inform hi, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and of defending his own character. It is grossly unfair and improper to let a witness’ evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.’. [21] Ibid, para 33. [22] Ibid, para 33. [23] 1944 AD 493 at 508 – 9. [24] 1937 AH on page 373. [25] S v Jochems 1991 (1) SACR 208 (A) and S v V 2000 (1) SACR 453 (SCA) [26] 1988 (2) SA 84 (C) [27] 2003 (2) SACR 319 (CC). [28] DT Zeffert AP Paizes & A St Skeen: The South African Law of Evidence at 94. [29] S v Ntsela, Eksteen AJA, referring to Miller v Pensions [1947] 2 All ER 372 at 373. sino noindex make_database footer start