IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) CC161/05 JUDGMENT

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) (RUSTENBURG CIRCUIT COURT) CC161/05 THE STATE and KEALEBOGA WRYL SHUPING JUDGMENT HENDRICKS J: [1] Mrs Kealeboga Wryl Shuping (accused) is charged with, and pleaded not guilty to, murder and arson. It is alleged that she killed her husband Thole Ernest Shuping (deceased) by pouring him with petrol and setting him alight on the 25 th May She also set fire to and damaged the bathroom in the main bedroom of their common home. She did not make any statement in amplification of her plea. [2] It is common cause that the deceased sustained extremely severe burn injuries to wit 100% 1 st and 2 nd degree body

2 burns, sparing only the feet and the pubic area. These injuries caused his death. [3] The State did not call any eyewitness to the incident in which the deceased sustained his injuries but relied on circumstantial and hearsay evidence. [4] The hearsay evidence consists of statements which the deceased allegedly made to state witnesses shortly after he had been burnt. I will later on in this judgment deal with the hearsay evidence. [5] The evidence led by the State can for the sake of convenience be categorized into three categories: nl. [i] the evidence shortly after the incident occurred; [ii] the hearsay evidence; and [iii] the expert evidence. [i] The evidence shortly after the incident occurred: [6] Sophia Tumelo testified that she heard screams and went outside to investigate. She saw a naked man that was burnt from his head to his feet. He was in the neighbouring yard. It is common cause that it was the deceased. A certain lady emerged inside the neighbouring yard. She picked up a brick and threw it at the deceased, which struck the deceased. It is common cause that this lady is the accused. [7] The deceased jumped the fence into Sophia Tumelo s yard 2

3 where a blanket was provided to him in order to cover him. He took refuge in the sitting room of this witness house where he was later attended to by paramedics and the police. [8] During cross examination Sophia Tumelo testified that the accused did not enter her house in order to provide any assistance to the deceased. [9] Eunice Kwalegi, who s house is located in between that of the accused and the first state witness, corroborated the evidence of the first state witness that accused was inside her yard having a brick in her hand and threw it, though she cannot say where the brick ended up. [10] Letlhogonolo Tumelo and Tshidiso Noko testified with regard to the extinguishing of the fire in the bathroom at the house of the accused and the deceased. [11] Letlhogonolo testified that after investigating what transpired outside where his mother and sister covered the deceased with a blanket, the deceased was taken into the sitting room, and he went to wash. He was then called by the deceased and asked to go and check whether his house was burning. He went out and saw smoke at the house of the deceased. [12] He summoned Tshidiso and they entered into the house in 3

4 order to extinguish the fire in the bathroom in the main bedroom, by using sand. The bathroom door was locked but had a hole in it. They enlarged the hole in order to get access because, in his opinion, a four and a half year old child could get through that hole but not an adult. They ended up being four in number that extinguished the fire. [13] Tshidiso corroborates the evidence of Letlhogonolo in all material respects. I find that these state witnesses were credible and honest, and that I can safely rely on their evidence as being truthful. They showed no bias and were clearly impartial. [14] Inspector Matlapeng visited the scene and found two men (most probably Letlhogonolo and Tshidiso) busy putting out the fire in the bathroom. He saw the container. It is common cause that it contained petrol and was half full, which in his opinion was on the dressing table. The bathroom door in the main bedroom was locked and there was no key to open it. His evidence is uncontested and it is therefore accepted by this Court. [15] Inspector Mokgatle s evidence is to the effect that on the morning of the incident, whilst she was on duty at the charge office, the accused arrived having a child with her. Accused was crying and she made the following report to this witness: 4

5 that there was a fight at her place and her husband was burning their house. The problem started the previous day (24 th ) and she called upon the police to talk to her husband about the misunderstanding. That morning, her husband confronted her about the fact that she sent police to his place. Her husband was furious. She locked her husband in the bathroom and she went to the bedroom. Her husband managed to open the bathroom and went to her in the bedroom. Her husband took petrol from the wardrobe and poured it in the passage between the bed and the wardrobe. He set it alight and he tripped and fell. [16] Though she was cross examined by Mr Engelbrecht SC, this report that accused made to her stands unchallenged and uncontested. The cross examination centred round the fact that the accused made a report to the police the previous day (being the 24 th ). [17] I have no hesitation in accepting her evidence as honest, truthful and reliable. More so, because the bulk of her evidence is uncontested. [18] Inspector Ndlovu, the Investigating Officer, testified that on the morning of the day of the incident he attended the scene, where he found inter alia Inspector Matlapeng. The bathroom was burnt and it smelled of petrol. He saw the 5lt container, half filled with petrol and the hole in the bathroom door. He went to the 3 rd house (must be that of Sophia 5

6 Tumelo, the first state witness) where he found the paramedics busy attending to the deceased. He called the fire investigator. Inspector Drude arrived at approximately 14h00 that same afternoon and was taken to the house of the accused and deceased (the scene). [19] The next day he and Inspector Drude continued with the investigations, and among others also inspected the car of the accused. It was photographed and the photographs were handed in as exhibit C. He searched the car and on the left front seat he found a box of matches, a bundle of keys and one loose (Y11) key. He tested the loose key on the bathroom door lock which he had removed and it could lock and unlock it. His evidence is corroborated by Superintendent Botha. [20] During cross examination it was put to this witness that a complete set of keys to the house was always in the car. No mention was made about the loose key. It is also not disputed that the loose key fitted the bathroom door lock. [21] It was also put to this witness during cross examination, that there was always matches inside the car in order to provide illumination in case of a power failure, though it was not mentioned when last, if at all, a power failure occurred. [22] This witness s evidence was more formalistic in nature. No 6

7 bias could be detected as he, as an investigating officer, was only performing his duty. I accept his evidence as honest, truthful and reliable. This witness impressed me favourably. [23] Initially, the DNA analytic process that was performed on the human skin (Exh s K & L and the control blood sample of the deceased) were contested and challenged. [24] However, the defence decided midway through the chain of evidence presented by the State to abandon it s attack and made the necessary admissions with regard to the correctness and competency of the technique used to analyse the aforementioned, exhibits K & L and the blood sample. It is therefore proved beyond reasonable doubt that the human skin (exhibits K & L ) are that of the deceased (Exh D). [ii] The hearsay evidence: [25] I will now consider the hearsay evidence testified to by various witnesses. The State applied that hearsay evidence be presented in terms of Section 3 (1)(c) of the Law of Evidence Amendment Act 45 of After listening to the submissions made by both counsel, the Court ruled that the hearsay evidence can be presented. [26] First of all Superintendent Botha testified about his 7

8 observations at the scene and the car that was driven by the accused. He also visited the deceased in the house of the first state witness. He asked deceased who did this to him and the deceased replied by saying it is my wife (accused). Because Superintendent Botha was the deceased s supervisor he thought it best not to take a statement from the deceased, neither to make a statement himself but instead to call Superintendent Bruyns to take a statement. This he did to avoid any suspicion or of possible bias on his part. [27] Superintendent Bruyns corroborates the fact that he was called by Superintendent Botha and he did visit the deceased at the house of the first state witness where paramedics were attending to the deceased. He was in the company of Captain Vlok. He asked deceased what happened and the deceased replied by saying his wife set him alight and locked him in the bathroom. [28] During cross examination he explained that in his opinion the deceased was severely burnt over most parts of his body and experienced severe pain, was soft spoken and though stammering, he could hear clearly what deceased was saying, and that deceased was close to dying. His exact words were my wife burnt me. bathroom. She locked me in the [29] Captain Vlok confirmed that Superintendent Bruyns spoke to 8

9 deceased and he heard that deceased said his wife burnt him. [30] Inspector Malapile testified that he visited the scene and found three boys busy extinguishing the fire in the bathroom. A report was made to him that the owner was at a neighbouring house. He went to that house and found the deceased. The deceased informed him that whilst he was taking a bath, his wife spilled petrol on the floor, lit a match and locked the door of the bathroom. He got out of the bath, struggled with and broke open the door and ran naked to the neighbouring house. [31] Botha, Bruyns and Vlok stated that deceased said that his wife burnt him, though Bruyns explained in more detail what exactly the deceased said. It is understandable that Bruyns will be in a better position to state the exact words to him by deceased because he was called specifically for that purpose. [32] Botha, after receiving the indication from deceased that his wife burnt him, went out and summoned Bruyns. Because he did not want to be seen to be bias, he was not keen to attend to what the deceased said. Vlok, on the other hand just accompanied Bruyns, he left it to Bruyns to speak to the deceased, that which he was called upon to do. He overheard deceased saying that it was his wife who burnt him. 9

10 He then went to the house of the deceased to inspect it. It is understandable why Vlok did not pay much attention to what the deceased was saying seeing that he must have left it to Bruyns to do what he (Bruyns) was asked to do. Be that as it may, there is no striking difference in what Botha, Bruyns and Vlok was told by the deceased. [33] There is also the evidence of Malapile of what deceased told him. It is uncertain at what stage he spoke to Malapile on the one hand, in relation to Botha, Bruyns and Vlok on the other hand. It may well be that deceased spoke to Malapile before he spoke to Botha, Bruyns and Vlok. Maybe he was in a better position or it was at a more opportune time to narrate in more detail what transpired. The contents of what was actually said by the deceased need to be closely examined. The important gist of it is that deceased told all of them that it was the accused (his wife) who burnt him. [34] The hearsay evidence of what the deceased had allegedly said must be excluded, unless I am of the opinion that the evidence should be admitted in the interest of justice. Before I can form such an opinion I must have regard to each of the six specified considerations and to any other factor which should in my opinion be taken into account. This is provided by Section 3 (1)(c) of the Law of Evidence Amendment Act 45 of

11 [1] The nature of the proceedings: [35] First of all, this is a criminal case and there is a reluctance to permit untested evidence against the accused. See in this regard S v Ramavhale 1996 (1) SACR 639 (A) at 647 i j; and also S v Ndlovu and Others 2002 (2) SACR 325 (SCA). [2] The nature of the evidence: [36] In my view the nature of the evidence appears from the summaries of the evidence given by Botha, Bruyns, Vlok and Malapile. [3] The purpose: [37] It seems to me that the evidence is tendered for the purpose of explaining what really transpired on the morning of the incident and who caused it. The evidence, if admitted, could, for instance have the following effect: [1] It could corroborate and lend credence to the evidence of the first state witness that she saw deceased naked and burnt, getting away, whilst accused yielded a brick at him. Clearly indicating who the aggressor was. [2] It could corroborate the evidence of the forensic 11

12 analyst and fire investigator R. Drude that the deceased was inside the bathroom whilst the fire was burning, that the hole in the door was made from the inside whilst there was a fire inside the bathroom, that the door was closed (and locked) at the time of the fire, that human skin was found on the inside part of the piece of the broken door. That a fused matchstick was found in the main bedroom. [38] In short, it seems to me as if the purpose of the evidence is to prove that there is no reasonable possibility that the version of the accused about the burning incident is true. As such the evidence is clearly very important. See: S v Mbanjwa 2000 (2) SACR 100 D&CLD. [4] The probative value of the evidence: [39] I next consider the probate value of the evidence. In S v Mpofu 1993 (2) SACR 109 (N) at 116 h i Alexander J expressed the views that evidence which is otherwise relevant should not depend for its reception on its importance in the case and that if the evidence carried the hallmark of truthfulness and reliability, then its reception is doubtless justified. I, nevertheless, bear in mind the following words of Schutz JA in Ramavhale (supra at 649 d); A Judge should hesitate long in admitting or 12

13 relying on hearsay evidence which plays a decisive or even significant part in convicting an accused unless there is/are compelling justifications for doing so. [40] I apply the following words of Schutz JA in Ramavhale (supra at 694 f) to the facts of this case: The inquiry under this head should proceed under two heads, namely (a) the reliability and completeness of Botha s, Bryuns s, Vlok s and Malapile s transmission of deceased s words and (b) the reliability and completeness of whatever it was that the deceased did say. [41] On the issue of the reliability and completeness of the evidence of Botha, Bruyns, Vlok and Malapile about their discussion with the deceased and what the deceased told them, I like to point out the following: [a] These witnesses were independent, unbiased, impressive, truthful and reliable. [b] The witnesses Botha and Bruyns had every reason to make the inquiries which they said they made. Botha must have been shocked and terrified about what he saw, with reference to the condition of the deceased, his subordinate. It must have been horrific. Bruyns 13

14 was tasked by Botha to take a statement from the deceased, hence he needed to enquire what happened. [c] There is no reasonable possibility that any one of the witnesses could have prompted the deceased what to say. [d] As far as their memories of the discussion are concerned, one must bear in mind the time lapsed and the circumstances that prevailed at that time in the house of the first state witness. The atmosphere must have been one of shock and horror. [e] On the other hand, the nature of the statements made by the deceased to Botha, Bruyns and Vlok is very simple. Though a more detailed statement was made to Malapile it was also of the kind which needs no embellishment to convey and was free of unnecessary frills and thrills, the crux of the contents, being similar: my wife burnt me. [f] The detail which Malapile gave about the deceased s specific statement that whilst he was taking a bath, his wife spilled petrol on the floor, lit a match and locked the door of the bathroom. He got out of the bath, struggled to break the door open and ran naked to the 14

15 neighbouring house, has a ring of truth in it. It is not something he would make up. It is corroborated by the expert evidence with which I will deal with later on in this judgment. [g] I am satisfied that the evidence of Botha, Bruyns Vlok and Malapile about what the deceased said to them is substantially true. [42] As far as the second leg of the enquiry is concerned, I am alive to the cautionary words of Schutz JA in Ramavhale, supra that hearsay evidence was long recognised to tend to be unreliable, and continues to tend to be so. [43] In considering the reliability and completeness of what the deceased said, I will look at the following: [a] Sincerity: It was put to Bruyns that deceased said these words out of malice and therefore had a motive to falsely implicate the accused. This means that after the deceased had accidentally or deliberately set himself and the bathroom on fire, the deceased made up the story (state s version), while he was on fire and running to the house of the first state witness, which is situated two houses away from his house. It is almost inconceivable that this could have happened. 15

16 Furthermore, the questioning by Botha and Bruyns was logical nl. who did it? What happened to you? [b] Memory: Given the very short space of time between the incident and the reports it is unlikely in the extreme that the deceased could have forgotten the events. [c] Perception: The deceased could not have made any mistake about what he observed, and what happened to him. The identity of the accused was not in issue and furthermore they were only two adults (deceased and accused) at home apart from their child who was an infant of 2 years 11 months by then. [d] Narrative capacity: The deceased was clearly able to narrate what had happened to him. He was specific in what he told Malapile as to how, whilst he was having a bath, the accused entered, spilled petrol in the bathroom, lit a match and locked the door of the bathroom. How he got out of the bath, struggled to break the door open, and ran naked to the neighbouring house. He appeared to have been rational about the fact that the house was burning. That is why he called Letlhogonolo and asked him to check whether his house was burning. [44] In my view there are certain safeguards present in the 16

17 objective facts which virtually guarantee the reliability of the hearsay evidence: [a] The evidence of Matlapeng, Ndlovu, and Botha about the 5lt. container approximately half filled with petrol. Clearly indicative of the fact that accused poured out some of the petrol, probably enough in the haste that she was, to set the deceased and the bathroom alight. [b] The evidence of Drude about the fused matchstick that was found in the bedroom away from the bathroom door. Indicative of the fact that accused must have lit the match and set the petrol alight, fused the match stick and threw it aside. Her intention was to set the deceased alight whilst he was in the bathroom and not to set the main bedroom or house alight. It also explains why the 5lt. petrol container was placed away form the burning area on the pedestal of the bed at the far end. [c] The fact that the one loose key that fitted the bathroom door lock was found together with a box of matches on the left front seat of the car which the accused drove to the police station shortly after the incident. [5] The reasons that the evidence is not given by the person whose credibility the probative value of such evidence 17

18 depends as author of the statement: [45] The deceased obviously could not testify because he had passed away. [6] Any prejudice to a party which the admission of such evidence might entail: [46] Clearly the accused did not have the opportunity to test the reliability of the statements by the deceased. I am aware of this fact. I am however firmly of the view that this prejudice in itself and by itself, cannot automatically result therein that the hearsay evidence is inadmissible. I am satisfied that despite the absence of cross examination the hearsay evidence is reliable. [7] Any other factor: [47] In S v Mpofu 1993 (2) SACR 109 (N) it was held that the reception of hearsay evidence under Section 3 (1)(c) of the Act should not logically be divorced from a consideration of those factors which at common law made for admissibility or not. In my view the evidence of the deceased s statement could have been admissible as either a dying declaration or a spontaneous statement as a common law exception to the rule against hearsay evidence. 18

19 [48] In my view it is not necessary to determine conclusively whether the deceased s statements would definitely have qualified as either a dying declaration or a spontaneous statement. In my view the interest of justice demands the admissibility of the hearsay evidence and there is compelling justification for admitting and relying on that evidence. [iii] [49] I will now deal with the expert evidence. The expert evidence: [50] Richard Drude, the forensic analyst and fire investigator, testified that he visited the scene of the fire damage to the bathroom of the main bedroom. There was fire to an area immediately in front of the bathroom door and in the bathroom in the main bedroom. He compiled a report which was handed in as exhibit G. His findings and observations were: that the bathroom window as open during the fire. This corroborates the version of Tshidiso that smoke came out of that bathroom window; that the origin of the fire was in the area immediately in front of the bathroom door at the entrance area and the bathroom. Though, because of the absence of remnants of fire load and the fact that a flammable 19

20 liquid was used he could not pin point the actual spot where the fire started; that the bathroom door was closed during the fire; that the bathroom door was locked and no key could be found to unlock it in the bathroom door, the bedroom or the house; that the bathroom door had a hole (initial hole) in it near the lock, which hole was made from the inside of that door; that this initial hole near the lock was made at the time that there was fire burning inside the bathroom; that the bathroom door was broken from the inside out, and that the hole was later on enlarged; that human skin (exhibit K ) was found on the inside of the broken piece of the bathroom door, on the floor inside the bathroom (exhibit L ) as well as on the outside doorframe of the bathroom door; that the initial hole was large enough for a human being to get through it; that the fused matchstick was found on the floor of the main bedroom next to the bed almost in line with the bedroom door; that a 5lt. container half filled with petrol was found on the pedestal on the bed in the main bedroom; that the toilet roll in the toilet roll holder and the toilet seat cover had burnt marks on top of it which may be as a result of the liquid splashing whilst poured out. 20

21 Although on examination it was found by Mulaudzi, in exhibit G2, that the seat cover contained no ignitable liquid contra to the shoes, wood of skirting, and the floor of the bathroom that contained ignitable liquid; that the lower part of the door was broken later on, and that explains why there is no burn marks or residue deposits on it as the combustion gasses could escape more easily. Had it been broken down earlier on, whilst the fire was still raging very high, the fire would have spread to the main bedroom; that soil was used to extinguish the fire; that the bathroom door was burnt on the outside which supports his opinion that the area immediately in front of the bathroom door also burnt as a result of the presence of the ignitable liquid. [51] During cross examination the version of the accused was put to this witness. He was adamant: that the bathroom door was not open when the fire was started or whilst it was burning and that because of the fire load in the bedroom it would have spread from the front of the bathroom to the bedroom if the door was open; that the deceased could not have stood near the doorway of the bathroom door and poured the petrol 21

22 into the bathroom. He found that most of the fire was concentrated to the left inside the bathroom which means that the person that poured the petrol must have gone into the bathroom in order to pour it to the left. In his opinion, petrol was poured into the bathroom and the door was thereafter closed; that there was not much fire load inside the bathroom (toilet roll, seat cover, shoes and towel) compared to the main bedroom (bed, wooden built in wardrobes, curtains, etc.). [52] Drude was an impressive witness, who stood gruelling crossexamination and remained steadfast. He was honest, reliable and trustworthy. I have no hesitation whatsoever in accepting his evidence. [53] In the final instance, the State called Gladys Matlekele, the administration clerk at Rustenburg Magistrates Court, who deals inter alia with protection order applications. She testified that on 23 May 2002 the deceased applied for a protection order against the accused. Deceased wrote the statement himself. An interim order was granted but there was no appearance on the return date. It was handed in as exhibit H. Approximately a month thereafter the accused applied for a protection order against the deceased, which was handed in as exhibit J. On 15 July 2002 the interim order was granted, which was made final on the return date, 08 August [54] Her evidence was very neutral, unbiased, and she made a 22

23 good impression upon the Court. Her evidence was formal in nature. [55] The aforementioned evidence proofs that there was a turbulent marriage relationship between the accused and the deceased. [56] It is not necessary for me to deal with the statement wrote by the deceased in application for the interim protection order against the accused. Suffice is to say that the defence did not cross examine on it and left it unchallenged. It was argued that the State did not apply that the Court should rule on its admissibility as evidence, though the defence lead evidence on the contents of the same statement. concluded the evidence tendered by the State. That [57] The accused testified in her defence and her evidence can be summarised as follows: she confirmed and therefore made it common cause that there was a turbulent relationship between her and the deceased which became violent at times; that on the 24 th May 2004 at approximately 17h00 when she arrived at home, she found the deceased there. She prepared the child, went to visit her mother and returned at approximately 20h00. After parking her car in the garage she went to bed in the main bedroom. She and deceased did not share a bed; 23

24 at approximately 02h00 the following morning she was awoken by the deceased and chased out of the house. She went to the Police Station to report the matter. Two police officers accompanied her home. A discussion was held with the deceased, who denied the allegations, and the two police officers left. At approximately 03h00 the deceased went to the bedroom where he slept and she remained with the child in the main bedroom. She did not sleep because she was supposed to wake up at 05h00; at 04h45 she prepared food in the kitchen, took a bath and prepared herself for work; while she was busy with her make up, the deceased entered into the bathroom of the main bedroom to have a bath. Accused then went into the bathroom to relief herself by passing water; deceased confronted the accused about the fact that she called the police. Whilst she tried to explain, deceased rose in the bath, grabbed her but she managed to break loose because the hands of the deceased were wet; she pulled the key out of the bathroom door, went outside and pulled the door in order to close it. Deceased pulled the door from the inside and he threatened to kill her; she managed to close the door and lock it. Deceased punched the bathroom door from the inside; she proceeded to the other bedroom to get clothes for the child when she heard that the punching of the door had stopped; she ran back to the main bedroom to check and found the deceased outside the bathroom he had freed himself from the bathroom; the bathroom door was unlocked and opened, though there was a hole of plus minus 18cm in diameter in it; 24

25 she saw the deceased holding a 5lt. container containing a liquid ( petrol ) which he was pouring out; she asked him what he was doing and he replied that she must carry on bringing people to his house, he will see what to do; whilst talking to the deceased, the child woke up and cried; deceased then handed over the container which was more or less half filled with petrol to her; she closed it and placed it on the pedestal on the side where the child was sleeping; whilst picking up the child, she heard the sound of fire. By then she was on the left side of the bed. She saw deceased standing towards the side of the bathroom where the fire was; she was shocked, she picked up the child and went away from the danger and to seek help; she opened the kitchen and the burglar door and put the child in the car. Deceased appeared and went out through the kitchen door; she ordered the deceased to get into the car because she had noticed that he was injured and naked, but he refused; deceased walked in the direction of the gate which was open. She reversed the car up to the gate; she alighted from the car, looked for the deceased and spotted him at a distance, more towards the next door neighbour s house. He was standing there; she called him but he did not respond. She walked towards him and tripped over a brick, which she picked up and threw aside; she again called him and he refused to answer her; she said that he should get into the car but he did not respond; she got back into the car and drove to the police station in order to get help faster ; she then reported at the police station that her 25

26 husband was cross for me after they left. I saw him taking petrol and throw it in the house. report after she reported the incident she got arrested as a result of the report of another police officer; when she was asked about the key and matches in the car she explained that her bundle of keys of the house remained in the car because she found her husband (deceased) at home the previous 2 days and she did not use it. A box of matches was usually kept in the car in case she arrived at home during the night and there would be no lights then she can use it to illuminate; she said that when she left she did not know what happened to the bathroom door key. husband is burning the house. The content of the was: I told him that there was a fight and that my [58] The following improbabilities exist in the evidence of the accused: she was aware that all was not well between them yet she went into the same bathroom where the deceased was having a bath in order to urinate; seeing that he was angry with her and she was afraid of him it is expected that she, in an attempt to avoid him, would use the other bathroom. Her entrance into the same bathroom negate against her evidence that she was afraid/scared of being assaulted; if regard is taken of her version, it means that after the deceased managed to free himself from being locked inside the bathroom, he took petrol, poured it into and in front of the bathroom (and possibly on himself too) and set it 26

27 alight. He went into the bathroom, locked himself in just to break a hole into the door and to get out of the bathroom through the hole. It defies all logic that it could have happened in that way. I find it highly improbable; she, as a nursing sister with 8 years experience, who noticed that her husband sustained severe burns (on her version at least on the lower parts of his body) did not went to summon an ambulance, seeing that she had a car and no cellular phone. Instead she went to the police station to report that her husband had set the house on fire. She did not in her evidence in chief nor in the report she made to Inspector Mokgatle testified that her husband was severely burnt, seeing that it happened accidentally ; the report that she made to Inspector Mokgatle (which is uncontested), differs remarkably from her evidence inchief and as alluded to during cross examination. In terms of this report she said that her husband (deceased) took petrol from the wardrobe, poured it in the passage between the bed and the wardrobe, set it alight, and he then tripped and fell. This is totally different from her evidence in chief; it is improbable that as an innocent person whose husband got severely burnt, the only assistance she rendered was to ask him to get into the car and nothing else. She did not go to any of the neighbours for assistance, she did not summon the ambulance, though she was a nursing sister, she did not even try to cover him seeing that he was naked; furthermore, when her husband went to the neighbours, innocent as she was, she did not go to him to render assistance. It makes sense that deceased did not want to get into her car seeing that she injured him. That explains why, though he was in such a bad state, he did not want her assistance. [59] It is improbable that the deceased who was very angry with the accused and even threatened to kill her, would doze himself with petrol and set himself alight. She was not in any form of danger at any given time and she remained totally unharmed. 27

28 [60] The following are the objective facts found to be proven by the State: there was a fire at the entrance area and inside the bathroom in the main bedroom; the fire was burning from the floor upwards, with most of the fire damage to the left inside the bathroom; the window of the bathroom was open and there was not a lot of fire load inside the bathroom; the bathroom door was closed and locked during the fire and the key thereto was not inside the door, bedroom or house; that a hole was made in the bathroom door from the inside. It was made whilst the fire was burning inside the bathroom; the origin of the fire was on the floor at the outside of the bathroom door at the entrance area and the bathroom though the exact spot cannot be pin pointed because a flammable liquid was used; that a fused matchstick was found lying in the main bedroom a distance away from the entrance area of the bathroom next to the bed in line with the door of the bedroom; that the skin of the deceased was found on the inside of the door pieces, on the floor of the bathroom and on the side of the doorframe of the bathroom; that a container half filled with petrol was found on the pedestal of the bed inside the main bedroom; that the key to the bathroom door as well as a box of matches was found on the left front passenger seat of the car which the accused drove to the police station 28

29 shortly after the incident. [61] As already stated, there is no direct eyewitness evidence tendered by the State, only circumstantial evidence. It is common cause though that the only persons inside the house at the time the fire started was the accused, deceased and their 2 years 11 month old baby. [62] The Court can safely exclude the possibility that the fire was started by the baby because on the version of the accused, the baby was asleep and woke up crying at the time the deceased poured the petrol out. The baby was then removed by the accused and placed inside the car. There is neither an inkling of evidence nor any possible suggestion that the baby started the fire. That leaves only the accused and the deceased. Deceased obviously is not alive to render an explanation safe for the statements he made to witnesses who testified about it, with which I have dealt with earlier on in this judgment. [63] The State, through the circumstantial evidence tendered, wants the Court to find by way of inferential reasoning that it was the accused who sat the bathroom and the deceased alight which lead to the death of the deceased. [64] In order to determine what inference may probably be made regard must be had to the two cardinal rules of logic as set 29

30 out in R v Blom 1939 AD 188 at viz: [a] the inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn. [b] The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct. [65] The only reasonable inference that is consistent with all the proven facts and which excludes every other reasonable inference is that; the accused acquired petrol and waited for an opportune time; on the morning of the 25 th May 2004 the accused went into the bathroom of the main bedroom whilst the deceased was having a bath. She poured the petrol on the floor inside the bathroom and the area immediately in front of the bathroom door; she lit a match stick and set the petrol alight with the intention of killing the deceased; after she fused the matchstick she threw it aside in the main bedroom; she closed the bathroom door and locked it; she left with the key to the bathroom and the box of matches; 30

31 the deceased struggled with, and eventually broke the door of the bathroom and freed himself; upon realising that the deceased had freed himself and possibly escaped death, the accused pursued him into the neighbouring yard; in ventilation of her anger, she picked up a brick and threw it at the deceased; in an attempt to escape possible arrest and prosecution, she went to the police station to make a false report. [66] In the light of all the evidence there is only one conclusion at which I can arrive and that is that there is no reasonable possibility that the version of the accused may be true. I find that the State succeeded in proving beyond reasonable doubt that the accused intended to kill the deceased by pouring petrol into the bathroom and set it alight whilst the deceased was having a bath. She did foresee the possibility that the bathroom may be damaged as a result of the fire but acted recklessly with regard to the ensuing consequences. [67] The accused is therefore found guilty as charged on both counts. R D HENDRICKS JUDGE OF THE HIGH COURT 31

32 DATE OF HEARING : DATE OF JUDGMENT: COUNSEL FOR THE STATE : ADV MOKONE COUNSEL FOR THE DEFENCE: JOHANN ENGELBRECHT SC 32