HIGH COURT OF SWAZILAND
the matter between:
the Crown: Mr N.M. Maseko
the Accused: Mr D.A. Kuny S.C. (Instructed by Millin & Currie)
25th November 2000 will go down as a day that may materially and
eternally change the live of two families, the Groblers and the
Blignauts. It was in the early hours of that day that Tanya Grobler,
a young Zimbabwean female died, her throat being slit with a sharp
knife. She met her death on the bed in a bedroom in the accused's
home at Pine Valley. Her first cousin, Sean Blignaut, hereinafter
called, "the accused", has been indicted on a crime of
murder, it being alleged by the Crown that he is responsible for her
Maseko for the Crown, in his opening address indicated that the
nature of the evidence to be led in support of the indictment was
both circumstantial and scientific. Before
the evidence in any detail, I find it apposite at this juncture, to
enumerate those facts which I find to be common cause.
which are common cause
following are facts which are common cause in this matter:-
Tanya and the accused are first cousins, their mothers being sisters;
Tanya had visited her aunt (the accused's mother) in Pine Valley
having arrived from her home in Zimbabwe; a week before she met her
the deceased, the accused and one Jacobu de Souse (PW7) went out on
the night of 24th November 2000, returning in the early hours of the
25th November, 2000 to their respective homesteads in Pine valley,
where de Sousa and the accused's family were neighbours.
later that morning i.e. 25th November Tanya died on a bed in her
bedroom at the accused's home as a result of an injury which cut her
throat. She further sustained a deep wound to her left hand palm.
accused's bedroom (which was adjacent to Tanya's) had its window
broken and under it outside the house was found a knife with blood
stains and a sharpener, which were part of a set of cutlery which
belonged to the accused's family.
distance from the window sill of the accused's room to the ground,
where the knife and sharpner were found is 4.8. metres, considering
that the bedrooms, including Tanya's and the accused's were on the
first floor of the double storey house.
accused's clothes, which he was wearing on that day i.e. a navy blue
t-shirt, a pink pair of bermuda shorts and a blue pair of underpants
had blood stains, particularly the shorts, which were heavily soaked
accused had certain lacerations and/abrasions on both sides of his
neck, chest and certain of his fingers.
accused's homestead had a parameter wall fence with five strands of
electric wire running almost right round the entire property.
Furthermore, there was an electric gate being the only entrance into
is also common cause that at the time, there were three dogs on the
of the scene of crime
during the proceedings, the Court conducted an inspectio in loco of
the Blignaut homestead and in which the deceased was found dead. The
house is situated in Pine Valley on a slope. It has a perimeter wall
fence surrounding the entire property, painted pink the same as the
house. Because of the varying gradient in the different areas covered
by the wall, it is impossible to say how high the wall is around the
entire property. Above the wall are five (5) strands of electric wire
being an additional form of security over the wall. At the gate is an
electric gate operated by remote control. The area from the gate to
the front of the house is paved with cement.
house is a double-storey with the kitchen and other rooms on the
ground floor, the four (4) bedrooms being on an upper floor. On
entering front door is a flight of steps immediately to the left
which leads to the bedrooms. Facing the passage leading from the
steps is a bedroom for the accused's parents and as one turns to the
right is a passage that leads to three other bedrooms. On the left is
a bedroom ahead of which lie two bedrooms adjacent to each other. On
the right hand side, before reaching the adjacent bedroom are a
bathroom and a toilet which are separate.
the adjacent bedrooms, the one on the right as one approaches is the
one in which the deceased was found dead and will hereafter be
referred to as Tanya's bedroom. There are two windows in this
bedroom. One is on the right as you enter the door and the other
facing the door. During the inspectio in loco, the bed in Tanya's
room was facing the southern direction but it was agreed that at the
time of her death, it was facing the Northern direction, the feet
towards the Southern direction.
the accused's room, there is a large window. The middle point
measuring 1.6 x 1.16 metres was broken on the day of Tanya's death.
The distance from that window to the ground outside is 4.8 metres.
Next to the main gate on the left as you enter is a small footgate
which leads to the garden area where there is a well maintained lawn,
covering the rest of the property.
kitchen has one large window and has two small windows measuring 89cm
x 55cm on both ends. The small windows are capable of being opened to
some extent. This window is 1.10 metres from the ground and there is
a drainage block in front of the small window to the left.
the top corner of the property are two green water tanks with some
steps inside which can make scaling the fence from the inside easier.
At that point, the distance from the ground outside the wall to top
stand of wire is 2.04 metres. Standing next to the water tanks, which
are on a high gradient, one notices that the ground level where the
tanks stand is at the same level with the roof of the kitchen.
necessity of pointing out some of the details that I have will become
apparent as the matter unfolds both in examination in chief and
cross-examination of the various witnesses called by both parties.
The cause of death
post-mortem examination report was admitted by consent, and it
records the findings and observations in terms of the provision of
Section 221 of the Criminal Procedure and Evidence Act No.67/1938.
Actions of Dr R.M. Reddy, who conducted the autopsy on the deceased.
This report was marked Exhibit "I"
to Dr Reddy, the deceased died as a result of a cutthroat injury,
which involved the blood vessel, windpipe and oesophagus. The
following ante-mortem injuries were observed;-
0.5cm over chin, below left ear 2.5 x 0.1cm
injury over front of neck, lower half horizontally present left to
right 13 x 4.1cm, exposing muscles, windpipe, oesophagus, carded
blood vessel vein, nerves, vertebral ligament on left side edges
clean cut angle sharp. Effusion blood in soft tissues of neck.
wound over right side neck below above injury 2.5 x 1cm muscle deep
with tailing present.
over lower lip 1 x 0.3cm lip deep present
wound over right palm 6 x 0. 1cm skin deep present with scratch -
middle 2 x 0. 1cm index finder lower end 1 x 0.2cm and scratch at
base of ring finger dorsum 0.4cm.
to the report, the following specimen were removed from the deceased
for further investigation:-
tube - blood
pad with string recovered from vaginal in-let and two vaginal swabs
tip cut preserved in envelopes with suspected scratched tissue
items (i) was taken for grouping. Items (ii), (iii) and (iv) were
taken for presence or otherwise of poisoning/narcotics. Item (v) was
taken for presence of spermatozoa whereas items (vi) and (vii) were
taken for the presence of stains and foreign tissues.
support of its case, the Crown paraded fifteen witnesses, who
comprised of Police Officers, forensic experts, security guards and a
was 966 Inspector Elphas Nkambule, who testified that he is a member
of the Royal Swaziland Police (RSP) stationed in Mbabane. He
testified that whilst on duty on the 25th November 2000, he received
a report from an anonymous caller at around 04h30 informing him of a
death in Pine Valley. PW 1 then called the vehicles which were on
patrol and instructed the officers to find the place where the death
was said to have occurred and that on finding it, they should then
call PW 1. The officers located the place and then called PW1, in the
company of 3910 Constable Sibusiso Dlamini, proceeded to Pine Valley
to the accused's home where they found one Jackie de Souza, who
offered to assist the RSP as
of the family were unable to speak. De Sousa (PW 7) offered to show
PW 1 whatever he wanted to see. PW 1 testified that he noticed a
carpet on the floor as he wanted to see any signs of mud indicative
of somebody coming into the house from outside as it was raining then
and the soil was wet with dew.
7 led PW 1 to a bedroom, where on the bed lay Tanya. PW1 examined the
body for injuries or wounds and it was his evidence that he noticed
the injuries reflected in Exhibit I. He also noticed a lot of blood
on the pillow and a pink bed sheet which were on the bed where Tanya
lay. It was PW1's further evidence than on inspecting the deceased's
body further, he noticed a bruise on one of her thighs. Tanya's hands
were somewhat closed, indicating that she had been grabbing on to
something at the time of her death.
to the bed was a white floor mat which had no traces of mud, save
bloodstains. PW 1 proceeded to accused's bedroom and found that a
windowpane had been broken therein. The room was also carpeted but
had no signs of mud or soil to indicate that somebody from outside
had come into that room. Looking through the broken window, PW 1
noticed broken pieces of glass on the lawn outside lying on the
ground undisturbed. PW 1 then proceeded to the kitchen where he had
been informed that a window had been left open to enable the family
cats to egress and ingress during the course of the night. On
inspection of the kitchen, PW 1 found no signs of entry by a person
into the kitchen using the said window.
1 then went outside to the broken pieces of glass which fell from the
accused's bedroom. There he saw a knife and a knife sharpner. In that
vicinity, PW 1 noticed a small opening on the lawn. His intention was
to find any evidence or traces that something had jumped out or
fallen from the accused's window, which according to his estimation
was about (5) metres from the ground. Looking at the small mark on
the lawn opposite the accused's window, PW 1 formed the opinion that
no human being could have jumped from that window and that had that
be so, a clear and big visible mark would have been left on the
to where the knife and sharpner were, PW 1 noticed some marks in the
flowerbed, which appeared to have been tilled recently. The marks
were not footmarks and PW 1 was unable to ascertain the type of
marks. PW 1 then went to inspect the wall fence around the
property to see if there was any area of the wall that had been
broken. The wall was intact. A search for marks armed on the wall
suggestive of a person having entered or exited the premises also
yielded nothing. PW 1 also went outside the property in order to
inspect the wall and again, he saw no indication whatsoever that the
wall had been broken or scaled, as there were no marks to indicate
then raised the Mbabane Police Station over radio and requested that
they call the scenes of crime and CID officers to attend to the scene
for purposes of investigation, examination and collecting of the
necessary evidence. The witness proceeded to describe both the knife
and sharpner as silver and that they looked like they are for
domestic use. He estimated the knife to be about 15-20cm. According
to him, the sharpner was shorter. The knife and sharpner were marked
Exhibits 1 and 2 respectively.
1 proceed to testify that the accused was in the house at that time
and he was being attended by a Doctor as he was said to have
sustained certain injuries. This witness proceeded to describe the
gate, the electric wire on top of the wall fence. He confirmed that
the scenes of crime officer Sgt. Magagula arrived whilst he PW 1 was
there. Magagula inspected the scene and took some photographs of the
1 was cross-examined at some length. He testified that he went to the
scene at 4h30 and arrived there when it was going for 05h00 and that
there was enough light then. He found 3226 Constable Mtsimunye and
3698 Constable Kunene already at the scene as he had instructed them
earlier to go and find the scene which they did and reported its
location to him.
1 was asked if he or any Police Officer took possession of the
pillow, pillowcases, sheets and the blankets for forensic
investigation. He told the Court that he had not done it but was not
aware if it was done and if so by whom. He was also unaware of what
had happened to Tanya's clothes. It was put to PW 1 that the main
electronic gate was capable of being pulled easily open by hand. This
the witness did not know and did not test whether it operated
was further asked if a person could have entered the house through
the kitchen window referred to above. His view was that it was
unlikely that a person could enter through it. It
further put to him that it is easy for a person to get onto the roof
from the water tank area and enter the house using the upper windows.
PW 1 agreed. He testified that he never checked for this at the time
because he was never asked to check that and nothing along those
lines was indicated to him suggesting that entry could have been
gained through the upper windows on the top floor of the house. He
agreed however when put to him that a person can step on the lower
part of the roof at the back of the house next to the tanks and from
there, move along the roof towards an upper level where it is
possible to gain entry into the house through one of the upper
inspectio in loco was conducted where the residence was inspected
together with the various places and locations referred to in the
evidence. I need not outline the observations made at this juncture.
One issue worth mentioning is that Mr Don Blignaut demonstrated how
he could open the front gate using his hand, so as to allow a person
on foot to enter through it.
2 was 2327 Det. Sgt Lucas Magagula. He testified that at the material
time he was stationed at Mbabane Police Station in the scenes of
crime unit. He testified that on the 25th November 2000, at or about
05h15, he received a telephone call in his house instructing him to
rush to Pine Valley where a crime had been committed. He went to the
Police Station and there collected his equipment and proceeded to the
scene, where he found PW 1 and members of the Blignaut family. PW 1
explained to him what had happened. He was let into the remote
controlled gate by Blignaut Senior.
proceeded to Tanya's room in the company of other officers and took
photographs, including those of the scene before it was interfered
with. He then drew a sketch plan which was not handed in to Court. He
proceeded to examine the deceased's body and noticed the injuries
reflected in Exhibit I. He also noticed some few bruises which were
not serious though.
testified that he was later led to a room in which there was a broken
window and was informed that it was through that window that the
assailant left the house. He took photographs of the broken window
and also tried to determine whether there were any marks made by foot
or shoe at or near the window. He also wanted to see if there was any
material left on the window. No marks or foreign material was found.
Standing in the accused's room, PW 2 saw Exhibits 1 and 2.
testified that he went outside to inspect these items. He first
inspected the area where the items were, took photographs of the
position of the knife and sharpner, (which unfortunately were
spoilt). He noticed that Exhibit 1 had bloodstains on it whilst
exhibit 2 had some spots on it which looked like rust. He examined
the surrounding area in order to determine if anything heavy had
landed there, consistent with the story that the assailant had exited
through the window but to no avail. All he saw was a small
indentation on the ground, clearly inconsistent with marks expected
to be made by a person jumping from the broken window or falling
therefrom. It was PW2's evidence that the mark he saw was about the
size of his fist.
2 then returned to Tanya's bedroom where he took blood samples, using
a test tube. He then proceeded to search for fingerprints in the
accused's room but found none. In the kitchen, he was shown a window
which was slightly ajar and from which he found a mark thereon, which
he referenced JML 1. He took and preserved this mark and later
forwarded it to the Police Headquarters.
also saw a cutlery box from which he was informed the Exhibits 1 and
2 are part and must have been removed therefrom for purposes of
killing the deceased. It was PW 1's evidence that he failed to find
any fingerprints on that box. He thereafter returned to the Police
Station having completed his business. Sometime after his arrival at
the Police Station, he received another call requesting him to return
to the scene.
obliged and on arrival, Blignaut Senior handed a dagger-like knife to
PW 2 and was told that it had been found between the base and the
mattress where the deceased was. PW 2 told Blignaut Senior that he
had collected all the evidence that he required and could therefor
not take the knife with him. Blignaut however prevailed on PW 2 to
take the knife as its mere sight evoked shivers down his spine as it
were. He told PW 2 that he should take that knife even if he would
later throw it away. PW 2 eventually relented.
knife was about 30cm long had a black handle and fixed blade and
looked like it had never been used. It was eventually handed in and
marked Exhibit 3. PW 2 then exhibited all the photographs taken from
the scene and these were marked accordingly.
was PW 2's further evidence that as he carried on his investigations
and examined the scene, he also looked for marks in the house
indicating that a person from outside had been in the house through
unorthodox means. This he testified would be easy to see because it
had been raining or drizzling outside. All these efforts bore no
fruit. It was PW 2's evidence that if the intruder had gone through
the broken window as alleged, he would have stepped on the window in
order to be able to jump outside. Furthermore, the broken window had
sharp edges left intact in the frame and that if any body could have
gone through it, some foreign matter, be it pieces of cloth or
splinters of hair would have been left on the sharp edges.
2 testified further that an autopsy was conducted on Tanya's body and
that he was present there. He took photographs of the proceedings. He
further asked for certain samples from the Pathologist Dr Reddy.
These were to be collected for purposes of matching with the other
samples collected from the scene. In this connection, the following
items were obtained from Tanya's body - fingernails which had some
foreign matter. The other specimen taken from the deceased appear
fully in Exhibit I. After completing this assignment, PW 2 returned
to the Police Station and took other exhibits from Supt. Mike Zwane
(which were already sealed), packaged them together with those
obtained from the post-mortem, sealed them and forwarded them to the
Police Headquarters for onward transmission to Pretoria where they
would be subjected to forensic examination.
cross-examination, PW 2 informed the Court of his qualifications and
training and his responsibility as a scene of crime officer. He was
asked as to how many fingerprints he lifted on the date in question.
He answered that he lifted only one from the entire house i.e. from
the kitchen, Tanya's room, the accused's room on the window sill and
protruding pieces of glass which remained on the wooden frame. He
also searched for these on the broken pieces of glass to no avail. It
was put to him that his was to search for visible fingerprints, take
samples thereof and give these to the examiner for purposes of
PW 2 informed the Court that according to his training, he must be
certain to lift fingerprints which would be clear enough for
was further put to him that he did not do much looking in light of
the one fingerprint he lifted. PW 2 testified that he must also be
sure that the surface is one on which fingerprints can be lifted and
if it is, he must find the correct powder to use in order to lift the
fingerprints. He informed the Court that he searched for fingerprints
on the side table in Tanya's bedroom but had no suitable powder for
lifting these, hence he did not dust that surface for purposes of
lifting up the prints.
testified further that the surface on the cutlery box was such that
he could not lift fingerprints. This necessitated that he looked for
fingerprints inside the box. He testified further that he was not
able to lift any fingerprints on the knife (Exhibit 1) because it had
been left in the rain. After drying it at the Police Station he found
no fingerprints. He testified further that no fingerprints could be
found on the handle of the sharpner either.
was put to PW 2 that not only was his fingerprint investigation
totally inadequate but that he lied when he said he did not find
finger prints anywhere in the house save the kitchen. PW 2 informed
the Court that he told the Court the truth.
asked why he initially refused to take Exhibit 3 from Blignaut, PW 2
told the Court that he did not know why he had to take the knife and
also did not know where it was from. Furthermore, when he came
earlier he did not see it and was surprised to be told to take it. He
was severely criticised by Mr Kuny for his initial reluctance. He
also testified that he examined the knife in his office for
fingerprints the same day but found none.
also emerged in cross-examination that the following items were not
taken for forensic or other examination, namely the pillow, sheet,
duvet cover, the deceased's panties and t-shirt. The answer given was
that photographs of these items were taken and were sufficient for
purposes of evidence.
was asked why he did not take blood from various items and parts of
the bed, particularly in view of the allegation that there was an
intruder in the house. PW 2's response was that the blood he
collected was found to be sufficient for his investigation and
what he did was in line with his training. He denied a suggestion
that his investigation was superficial and inadequate.
2 under further cross-examination was asked if he and his police
colleagues did take off their shoes when they entered the Blignaut
residence. He told the Court that they did not and also left no wet
marks on the carpet. When asked why an intruder would be expected to
leave wet or mud marks, PW2 told the Court that Police Officers came
driving and alighted on the cemented part of the yard before entering
was put to PW 2 on instructions that the Police never removed their
shoes and walked all over the house and may or may not have left
marks but took no steps to avoid leaving marks of shoes which may
have been wet or muddy. PW 2's response was that PW 1, a senior
officer reported to the scene and is au fait with procedures at
scenes of crime i.e. that scene must be preserved so that unnecessary
walking on the scene and contamination is avoided.
was also put to PW 2 that he could not say what type of marks would
have been left by the intruder outside the accused's window, given
the state of the lush and green lawn and the fact that it was wet. PW
2 said it was possible in view of those factors that a mark would not
have been visible.
3 was Det. Constable S. Dlamini who is based at the Police
Headquarters fingerprint section. His main duties are to identify
people by their fingerprints, boasting of some ten (10) years
experience in this field. Shorn of all the frills the upshot of his
evidence was that he received a fingerprint lift referenced JML1,
which from the evidence, was lifted by PW 2 from the Blignaut
kitchen. He also took possession of a finger print form of the
accused and on comparing the two discovered that they were made by
the same person. He demonstrated how he came to his conclusion.
cross-examination, it was put to him that the fingerprint lift was
obtained from the kitchen window in the accused's place of residence.
He said he did not know but could not deny that it was so. It was
stated, in that connection that the accused could have opened and
closed that window a number of times in the days or weeks before it
was lifted. PW 3 agreed with this.
4 was 1692 Superintendent Mike Zwane, the Regional Crime Branch
Officer (R.C.B.O.) of the Hhohho Region and based the Regional
Headquarters. He testified that on the 25th November 2000, he
received the report of a murder from the erstwhile R.C.B.O. (Hhohho)
Supt Aaron Thabo Mavuso, who was then leaving for Manzini and was to
be replaced by PW 4.
with Supt Mavuso, PW 4 proceeded to the Blignaut homestead at around
06h00, where they found the gate locked. They rang a bell and were
let in by Mrs Blignaut. They proceeded to Tanya's room where the
injuries on her body, as described elsewhere above were observed. It
was PW 4's evidence that he also noticed some blood stains on the
bedding and on the carpets and mats on the floor. He was also taken
to the accused's room and shown the broken window. Looking outside
that window, PW 4 saw broken pieces of glass on the lawn and some
inside the room on the floor.
4 testified that he also saw exhibits 1 and 2 on the ground outside.
He returned to Tanya's bedroom to ascertain if there were any traces
showing that there had been an intruder as explained to them. It was
his evidence that the bedding was very clean save for the blood on
it. From his observation, there was no indication that somebody who
was either barefooted or wearing shoes had been on the bed. On the
floor, next to the bed was a white floor mat, which PW 4 thoroughly
inspected for marks by a person who could have walked in from the
outside as it was raining the previous night. The mats were clean,
bearing no sign that somebody from outside would have stepped on it.
4 testified further that he then went outside to where Exhibits 1 and
2 were. His chief intention was to see if there were any marks
indicating that a person from the upper floor had jumped from the
window in the accused's room. Like PW 1 and PW 2, he testified that
he saw a small mark, which he described as one consistent with having
been made by the heel of a shoe. He testified that the ground was
very wet and for that reason, if something fell from the upper floor
to the lawn, a mark would have been left on the ground where it had
4 also looked around the flowers to see if he could find any foot or
shoe marks leading to the wall fence but to no avail. The only ones
he found were those he was informed had
made by Police Officers before he arrived on the scene. His next
assignment was to walk within the entire yard, searching but again to
no avail. He went outside the yard and walked right around the wall
to ascertain if there were any marks on the wall outside. Again, his
efforts bore no fruit. PW 4 testified further that he also went to
the kitchen where the window had been left open during the night
according to information given to him. He however found the kitchen
to be very clean at the time with no marks suggestive of an
intrusion. A thorough inspection of that window did not show any shoe
or footmarks. The wall outside the kitchen was very clean, spotlessly
clean, to use his exact expression.
4 testified that he thereafter sought to speak to the accused but was
informed by Mrs Blignaut that he was asleep as he had been given some
sleeping tablets. PW 4 returned to the Police Station without having
spoken to the accused therefor. At the Police Station, 3910 Const.
Sibusiso Dlamini handed to PW 4 one pink pair of shorts, a blue
t-shirt and a pair of blue male underwear. These were sealed and he
(PW 4) handed these over to the scenes of crime office for
processing. PW 4 testified further that on the 31st December 2000,
he, in the company of other Police Officers went to the accused's
home to look for him but they did not find him. They went to Dalriach
where they found the accused, cautioned him in terms of the Judges'
Rules and arrested him for the charge he is presently facing. He was
taken to the Police Station where he formally charged.
4 testified further that other than looking at the kitchen window as
a possible entry point for the alleged intruder, he looked at the
accused's room and found that windows capable of being open were in
fact closed. He also proceeded to the main gate and formed the
opinion that it was impossible for a person to walk in there, as the
gate is electronic and there were vicious dogs within the yard at the
4 testified further that during his inspection of the wall, he
proceeded to the tank area where it was suggested by the Blignauts
that the intruder may have entered the premises. He searched for
marks there unsuccessfully. PW 4 confirmed that there is an electric
wire on top of the wall consisting of three (3) strands. His
conclusion, regarding the security of the premises was that the
premises were highly secured and that it would not be easy for any
criminal to gain entry, particularly in view of the vicious dogs, the
wall and the electric wires on top of it. He stated that the house
itself was very clean and well looked after. Spotlessly clean, to
again use his terminology.
cross-examination, PW 4 was asked about what happened to the
deceased's clothes and bedclothes. His response was that he did not
know and that it was not his responsibility to collect them. He also
informed the Court that he did not attend the post-mortem examination
and for that reason did not know what happened to some of the
specimens, including vaginal swabs and a tampon, removed from the
was put to PW 4 and he agreed that it was raining that night; most of
the property is covered by lawn save certain flower beds and some of
it by cement and concrete paving. He was asked if he removed his
shoes when he walked into the house and his answer was in the
negative and this applied also to the other officers. Their shoes did
not leave any wet or mud marks on the carpet. This he attributed to
the fact that Police are disciplined people who cannot walk into a
clean house with dirty shoes. He answered, and stated that before
entering the house they were clean. When suggested to him that an
intruder who wanted to conceal his identity would take the same
precautions as the RSP, PW 4 said the same can not apply because the
latter would have had to climb over a wall and would not walk in
through the door.
was further put to PW 4 that the security at the Blignaut residence
was poor, particularly at the tank area where the wall can easily be
scaled and climbed over. It was put to him further that a person with
any degree of agility could climb up a pole, step over the wires and
step into the property. This PW 4 denied, stating that if it were
possible, then he would have seen the marks showing on the wall. He
even denied that climbing over the wall was possible without touching
was further put to him that the gate was not the most modern and was
rather rickety, imprecise in the way it opens and closes, such that
it is possible to open it to some extent with one's hand. This PW 4
denied and stated that Mr Blignaut told him that may be the gate was
not properly closed but when PW 4 tested it, he found that it was
hard to open. During the test, according to PW 4, there was no space
left sufficient for a person to go through on foot.
was further put to PW 4 that a person could easily step onto the roof
next to the water tanks and enter the house. At first, PW 4 denied
this but later conceded after being shown
photographs. He stated that although possible, it is not as easy as
Defence Counsel depicted it. PW 4 agreed that once a person was on
the roof, he could gain access into the house using windows that had
not been closed upstairs.
was suggested also to PW 4 that the three dogs were not vicious, the
vicious dog having been put down several weeks earlier. PW 4 denied
this. He told the Court that they were told that the dogs were
vicious and had to be locked inside the garage every time they
visited the homestead. All suggestions that the dogs were not
vicious, but noisy and look formidable were vehemently denied by PW
4, maintaining that the dogs were vicious and that Mrs Blignaut had
told them so.
was also suggested that after the Police failed to locate the alleged
intruder, and when it became apparent that no one could be arrested,
they then arrested the accused. PW 4 informed the Court that they did
not fail to apprehend the suspect, rather they conducted
investigations, replayed the events in their mind and became
convinced on circumstantial evidence that the accused was
was also put to PW 4 that a person could or could not leave a mark on
the ground below the broken window, depending on how he/she landed,
the nature of the soil, the wetness or dryness of the surface. PW 4
disagreed, reasoning that no matter how one landed, a mark would have
been left. He stated that the grass had not fully grown and a mark
would have been left on the ground.
4 was also asked as to why certain items were taken for forensic
examination twice and this he attributed to the fact that some
officers from the Laboratory in South Africa came to the crime of
scene thus necessitating that some of these be sent back to the
laboratory. PW 4 also informed the Court that he instructed Inspector
Maphosa to obtain blood samples from the accused through a Doctor and
this blood was sent for tests in the Republic of South Africa.
Nothing important turned on the re-examination.
6 was Jacoba de Sousa, who presently resides in Johannesburg. She
told the Court that in November 2000, she lived in Pine Valley and
was a neighbour to the Blignauts. She knew the Blignauts very well
and would normally visit them, as Mrs Blignaut was her friend. It was
her evidence that she and the accused had an affair at that point in
further that she knew Tanya well and that she had met Tanya during
her visits. She described Tanya as a likeable person and with whom
she got along very well.
the events of the fateful day, PW 6 told the Court that she, Tanya
and the accused went out during the evening of the 24th November
2000, to Mantenga Restaurant. Tanya and the accused had supper and
they later decided to go and have coffee at a gentleman' s house,
whose name was Paul. They left in separate motor vehicles, she and
the accused travelling in one vehicle.
the way back to Mbabane, the accused's vehicle overheated,
necessitating that they stop at a garage to put in some water. They
also bought some cigarettes. From there, the accused took a turn,
stopped off at a house and bought some drugs. They then proceeded to
Paul's house where they picked up Tanya, whereafter they proceeded to
Pine Valley, arriving there between 01h45 and 02h00. Later that
morning, at 3h38, her husband got a telephone call from Mrs Blignaut.
PW 6 called Mrs Blignaut who told her that Tanya is dead and the
accused is hurt.
6 quickly put on her jeans and shoes and then ran out, took her first
aid kit and proceeded to the Blignauts. At the gate, she rang the
intercom and the gate was opened for her. On entry, she found Mrs
Blignaut and the accused sitting on the floor. PW 6 proceeded to
Tanya's bedroom to ascertain if she could do anything to assist but
found that she had stopped breathing and was already cold, ice cold,
as she stated. Tanya had lost a lot of blood which had already
6 then went to the accused and his mother on the passage floor where
they were sitting. She attended to the wounds on the accused's hands.
Both could not speak to her because of shock. The accused was
bleeding from the wound on his hand and PW 6 dressed the wounds. They
then sat waiting for the arrival of Dr Mills, who did arrive some ten
(10) minutes after PW 6's arrival. Dr Mills went to Tanya's bedroom
and returned to sit with PW 6, the accused and his mother. They
waited for the arrival of the Police.
the Police arrived, they started their investigations and asked PW 6
to go into the Tanya's room with them to identify Tanya and she
obliged. After completing their business and taking statements from
the accused, they left and the coroner came to collect
body. Dr Mills picked up Tanya's body and found a knife under her
(Exhibit 3). He put it down and the Police were called according to
PW 6. The knife was found by Dr Mills under Tanya, which evidence I
then adjudged inadmissible as PW 6 had been told about that aspect.
6 proceeded to describe the scene in Tanya's bedroom and I may say
accurately as her description tied in with the photographs handed in
by PW 2. She proceeded to describe the security measures at the
Blignaut homestead, which included the perimeter wall fence which she
said was 6 foot, electric fencing on the wall and an alarm system in
the house. PW 6 also mentioned that the Blignauts had three (3) dogs,
which she described as vicious, particularly to people who did not
know them. Reverting to the alarm system it was her further evidence
that if people touched the electric fence, it would trigger an alarm.
There were also panic buttons in the house.
6 further testified that she made enquiries about the broken window
in the accused's bedroom and was informed that the accused heard
Tanya screaming and he proceeded to her room to investigate and there
found somebody on top of her. He attacked that person, who attacked
the accused in return with a knife. As the accused backed out of the
room, he fell down and this person ran into the accused's room and
jumped out through the broken window. According to PW 6, all this
information was given to her by Mrs Blignaut but a description of the
man was not given, whether big, small, colour or race.
main points of cross-examination were the following:- PW 6 denied
that she showed the RSP around the house except for taking them to
Tanya's bedroom. PW 6 told the Court that after the Police were
through, she took off the accused's clothes and bathed him as he
would have had difficulty because of the injured hands. PW 6
confirmed that the accused's clothes were soaked with blood,
particularly the pants and underpants. It was her evidence that after
she took the clothes off the accused, she put them altogether on the
bathroom floor. Dr Mills later requested one of the nannies to bring
a bag and he was provided with a plastic bag in which the clothes
were put and later handed to the RSP.
6 was asked if she was aware that the electric gate did not always
operate efficiently. In response, she told the Court that one could
open it by hand but one had to used excessive force to pull or push
it open. She also testified that the electric fence could be
weather or a lethal blow to it and in which case the alarm would be
triggered. She further testified that she could not say whether the
alarm was operating efficiently that night. She confirmed that the
house had no burglar bars and was also aware that a window was on
occasions left open in the kitchen to allow the cats to enter the
it was put to PW 6 that the three dogs at the accused's home may be
large and make noise and bark but were not vicious, PW 6 disagreed.
She singled out one as not lacking in viciousness. She testified
further that the dogs are never locked up at night but they do have
kennels in which they sleep at the back of the house. It was her
further evidence that she did not see the dogs that morning.
6 also agreed as suggested to her that because of the disapproval of
her affair with the accused, particularly by his father, the accused
on occasions would climb over the electric fence at the corner next
to the water tanks, to leave and enter the premises. She also agreed
to the suggestion that the accused avoided leaving the premises
through the main gate because it made a lot of noise and which would
alert the accused's parents.
was also put to PW 6 that the accused denied acquiring drugs on the
night in question but PW 6 remained steadfast that the accused did
obtain drugs because although he left her in the motor vehicle when
he went to acquire them, on his return, he asked PW 6 to move over to
the drivers seat as he tried to smoke the crack in a coke tin. She
testified that the accused definitely acquired the drugs that night
although he tried unsuccessfully to smoke the crack cocaine.
7 was Dr Allen Dumsane Mazibuko of the Mbabane Government Hospital.
He testified that on the 26th November 2001, the accused was brought
to him and he was requested to obtain blood samples from the accused
by two Police Officers. He obtained consent to do so from the accused
and he proceeded to take the accused's blood and put it into two test
tubes, which he labelled and handed over to the RSP. He also
testified that he noticed two scratch marks one on each side of the
accused's neck and three on the chest above the left nipple. Other
injuries of note were two cuts on the back of the right hand across
the middle and index fingers. Another was across the left thumb. Dr
Mazibuko prepared a report of his observations and findings which was
marked Exhibit G. He
to above as abrasions which he described as a skin injury whereby the
superficial layers of the skin are peeled off.
much turned on the cross-examination of this witness, save to mention
that Mr Kuny sought to establish the exact nature of injuries on the
accused's body i.e. whether they were lacerations or abrasions. The
Doctor testified, having made a caveat that he is not an expert in
forensic examination, that an abrasion is a superficial skin injury
which results in the superficial layers of the skin being peeled off.
Further, this may be caused by a sharp or rough object. Lacerations
on the other hand were described by PW 7 as injuries which would
actually leave the skin open and could also result in bleeding
sometimes considerably, depending on whether blood vessels have been
8 was Dr Mark Gary Mills of the Mbabane Clinic. He testified that on
the fateful morning at about 03h30, his wife received a phone call
said to be from a neighbour Mrs Blignaut, who informed her that an
intruder had entered the house and stabbed her niece. PW 8 was
requested to come quickly. PW 8 took his emergency bag and proceeded
to the Blignauts where he arrived at about 03h45. Blignaut Senior was
waiting for PW8 outside and proceeded to usher him inside the house.
found the accused in the centre of the passage upstairs and was very
distressed and was kneeling on his haunches with his face in his
hands. His hands were bandaged. PW 8 quickly looked at the accused
and Blignaut Senior showed PW 8 into Tanya's room where it
immediately became evident that she was dead. He felt for a pulse and
noted that she was cold. PW 8 noted the injuries described in Exhibit
I, save to add that in her left hand, a thin gold chain had been
caught in the laceration. He observed that there was a large amount
of blood around her and which, as established earlier in evidence,
had already clotted. PW 8 left the room to see if he could assist the
was his evidence that he tried to console the family as they were
distressed and in a state of shock. He mentioned seeing PW 6 there.
PW 8 testified that a cursory look at the accused suggested that he
was in no danger from the wounds he had sustained. He waited for the
arrival of the RSP. After the RSP had completed their business, PW 8
examined the accused's injuries and arranged that he gets better
treatment at the hospital. He also filled in a RSP assault form. He
also arranged for the removal of the deceased's body to Mbabane
Society Mortuary. As they removed the body, they discovered another
knife underneath the sheets, between sheets and the duvet on the
right side of the body. It was then that Blignaut Senior called the
RSP, as testified by PW 2.
8 also described the scene in Tanya's bedroom. Regarding the
accused's injuries, it was PW 8's evidence that the injuries which
were of the greatest concern was a laceration he had on his finger on
the first and second digits of the right hand and which were about 4
to 5 mm deep and were not bleeding. There was also a laceration on
one of his thumbs which was deeper. Dr Mills also mentioned some very
superficial lacerations on both sides of the accused's neck and on
the left shoulder in the front. These injuries were recorded and
drawn in a report prepared by PW 8 marked "H". In his
opinion, these injuries were made with a sharp instrument.
8 also informed the Court that the accused was wearing a t-shirt and
a pair of shots but could not remember the colours thereof. It was
his evidence that there were no cuts on the t-shirt in particular,
and none corresponded with the lacerations on the shoulder. His
observation was that the shorts were heavily stained with blood. He
testified further that it did not look like there was any major
struggle on the bed and what was most surprising was that the pattern
of blood on the mattress was quite contained, considering the nature
of the injury.
was his evidence that he expected, in view of the carotid artery
having been cut that much more blood would have been sprayed around
where Tanya lay. If you cut the carotid gland, he continued and which
is one of the major arteries supplying blood to the head, the
pressure of the blood in that vessel, which is the same as one's
blood pressure, blood would squirt out and it could shoot anywhere up
to a metre or so into the air. Further, once cut, the artery
contracts thereby spraying the blood further. It was his further
evidence that if the blood is unimpeded, these injuries generally
become messy. He observed that the blood around Tanya seemed to have
8 further told the Court that Blignaut Senior explained to him what
they thought had happened. PW 8 went also to take a look at the
broken window through which the assailant was alleged to have jumped.
From that window, he confirmed having seen Exhibits 1 and 2 on the
cross-examination, PW 8 mainly confirmed his evidence in chief. He
confirmed that the accused's clothes were all in a black plastic bag.
It was his evidence that when the RSP left, they left the plastic bag
with the clothes behind and the witness suggested that the clothes be
given to the RSP as they could constitute crucial evidence. PW 8
therefor took the bag and gave it to the Police.
8 further informed the Court that PW 6 had done a good job on the
accused. He only removed the bandages, looked at the injuries and
re-applied the same bandages. He testified that he did not remember
if the bandages were bloodied but the wounds were not bleeding that
is why he found it safe to re-bandage them until he saw the accused
later. When suggested to him that the wounds may have been bleeding
at an earlier stage, PW 8 testified that they could have been
although when he examined them, they were not bleeding. He was quick
to point out that from his recollection, the bandages were actually
further testified although the wounds would have bled, they were
fairly superficial cuts which did not necessitate sutures. As a
result, when he dealt with them later, he used plaster sutures or
butterfly sutures. Regarding the marks on the accused's chest which
he called lacerations, PW 8 testified that they had very linear edges
and were superficial, not deeper than 2mm. He formed the opinion that
they looked like they had been done with a scalpel and that is how
sharp the instrument had to be. In contrast to PW 7's opinion, PW 8
was of the view that those injuries were not abrasions but
lacerations and that although they were bleeding, it was not more
than a little ooze.
to PW 8, the injuries had just gone through the dermis of the skin
and were superficial. He added that to make a mark that superficial
and with such a linier edge, you needed to use a sharp instrument. It
was PW 8's opinion, looking at the scene that it looked possible that
she had a pillow over her head because that is where most of the
blood had been absorbed. It was also surprising to him that there
were no bloody footprints and that from the pictures, it was clear
that this was a very contained assault. PW 8 also found it quite
strange, that her right side of the face was clean as it would be
expected to be covered in blood. PW 8 also testified that people who
suffer these injuries normally move around, pouring blood everywhere
in the process.
how he found the accused, it was PW 8's evidence that the Blignauts
were in a state of distress and that the accused was shocked and
mumbling saying he tried to do this and that. He was rocking back and
forth saying "why, why, why?"
9 was Det. Constable Sibusiso Dlamini, an officer based at the Hhohho
Regional Headquarters in the 999 unit. It was his evidence that on
the 25th November 2000, he received a report concerning a death in
Pine Valley. This was at or about 04h30. He proceeded to Pine Valley
in the company of 966 Inspector Nkambule (PW 1) where they arrived at
around 05h00. PW 1 had sent some officers to the scene ahead of them.
9's evidence regarding the scene and what he observed ties in neatly
with the evidence of PW 1, PW 2 and PW 4. It was his further evidence
that he obtained the accused's clothes from PW 8 which were in a
black plastic bag and he separated these, placing each in a plastic
bag and put them in envelopes. He sealed them with a sealing wax and
handed them over to PW 4. PW 9 described these clothes and identified
them in Court.
cross-examination, PW 9 confirmed that when he received the clothes,
they were still wet with blood and were bundled together before he
separated them. He confirmed that when he entered the homestead the
motor gate was open slightly so that a person could walk through.
10 was 0444246-6 Senior Superintendent Peter White of the South
African Police Services (SAPS). He is attached to the Forensic
Science Laboratory as a Control Forensic Analyst. It was his evidence
that PW 4 handed to him a set of photographs of the deceased, the
accused's statements to the RSP, Mrs Blignaut's statement, the
statement of PW 5, the statement of Russell Morgan Jones, the reports
of PW 1 and PW 2, all appertaining to the matter under scrutiny.
White was requested to study above-mentioned documents and further
requested to visit the crime scene to determine the following: -
places where a person could enter and leave the premises
places where a person could enter the house
possibility of a person leaving the house through the window in the
accused's bedroom; and
reconstruct the events of the night in question from observations at
the scene, the photographs, statements and the reports.
(i) above, Supt. White was of the opinion that at the north western
corner of the property next to the main gate, a person could enter
the property between the neighbour's gate and the wall of the
property. He opined that this could be possible as there are no metal
spikes on the metal fence. Another area identified as a possible exit
point is the area next to the gate where a Jacaranda tree grew at the
time. A person could leave the premises by climbing onto the tree
onto the overhanging branch and jump down outside the premises (see
Photograph 6). The tank area was also identified as one of the areas
from which a person could possibly leave the property. An electricity
pole outside the property was also identified as possible conduit for
entering the premises.
inside the property, White opined that a person could get onto the
roof of the house from the terrace on the western side of the house
and enter through one of the windows on the first floor i.e. bedroom
area. White also identified the kitchen window as possible point of
entry into the house.
prepared and filed an affidavit concerning his mandate,
investigations, observations conclusions and opinions, marked Exhibit
"M". He also handed in a photo album marked Exhibit "K",
depicting various sites and places in and around the Blignaut
homestead. Supt. White, in his conclusions and opinion, found that
the story about the exit of a person through a window is false and
gave reasons for therefor. He was also of the view that the wounds on
the accused were self-inflicted and gave reasons for his opinion. An
objection was raised by the defence on the propriety of accepting
cross-examination, it was put to PW 10 that it was possible that some
object was used to break the window in the accused's room. PW 10
agreed. He further agreed that the opening on the broken window was
big enough for a person to jump or dive through.
suggested that there are a number of possibilities as to how this
person could have exited, including climbing on to the ledge and
hanging by his fingers on the ledge and dropping to the ground, PW 10
said this possibility would be unlikely in view of the fact that
there were items visible on the ledge i.e. glass (see photograph B3).
His view was that
these items would fall off the ledge, particularly on the left side
of the broken window where the intruder must have exited.
was further suggested to him that the glass on the ledge may have
come into contact with a person or was left after the person exited
the window. White stated that he did not know whether all the glass
fell when the person exited but it was important for one to look
where the glass is on the sill vis a vis the opening. When suggested
that a person could have held on to the ledge with his fingers and
then dropped off from there, White regarded this as a possibility. He
was however quick to point out that the ledge is not wide and that it
would be difficult for a person to have done so, although it is
possible for persons with special skills.
questioned about whether the person exiting through the window would
leave a mark, White was of the opinion that if the ground was as wet
as described, then an impression would have been left on the lawn but
because the RSP said none was left, he would not comment. It was
suggested that whether a mark would or would not be left and if so
what type was dependent on how the person fell. PW 10 stated that
this would depend but was quick to point out that the risk of injury
would have been there if there was little contact with the ground.
as to the reason why so many samples were taken during his visit and
why so few were examined, PW 10 testified that as many samples as
possible must taken from the scene and you can later decide which
ones to analyse. He agreed, when put to him that he could have taken
all the items of bedding, clothing and carpeting, including the
jagged glass both inside and outside the room to examine for any sign
of flesh, blood, clothing or hair to give a clue that somebody had
jumped out of the window.
10 further testified that he would have taken the accused's clothes
and separated them and would not have put them into a plastic bag as
that could have the debilitating effect of destroying some of the DNA
evidence because of the green house effect. He cited the danger of
contamination as the reason for keeping the items of clothing
next witness in this catergory of evidence was David Sabelo Christie
(PW 12) an employee of Guard Alert Security. He testified that he is
the Control Room Officer in the
Department, where alarms are monitored and complaints and/or requests
for guards and such other services are received. In that room is a
computer which shows signals and once that happens, he telephones the
client whose signal has been activated and ascertains the nature of
the problem and determines the assistance necessary.
12 confirmed that this company has a client Mr Don Blignaut and that
on the 26th November 2000, he received a signal from Mr Blignaut's
residence at 04h32 as he was on duty that morning. It was his
evidence that on receipt of the signal, he called the Blignauts and
was told to come. PW 12 sent inspectors to attend at the Blignaut
homestead. He testified that the computer produces a printout and in
which entries relating to signals received are recorded. The printout
reflected that on the 25th November 2000 at 04h32 a signal from the
Blignauts was received.
12 also testified that an occurrence book is maintained and in which
information relating to signals is entered manually together with any
action taken thereon and reports thereto anent. Regarding the above
entry, PW 12 read from the book the entry he made namely that he
received the alarm at 04h32 and at 05h36, he received feedback to the
effect that Mr Blignaut refused to sign the reaction form, could only
turn back inspectors, no broken window pane, black man killed from
RSP, reaction phone number 133898 - time 04h39 to 05h35 Police on
the process of receiving signals in cross-examination, PW 12 stated
as follows: - that signals are received by the decoder with four (4)
numbers coming through. You look at the number showing and you punch
it in and it tells you the number of the client you have to call.
This signal can be activated by somebody pressing a panic button or
an intrusion into the house or by the client if he opens his door but
is late in punching in the code. He testified that in certain
instances, a false alarm is given as evident in the printout on the
24th November 2000 at 11h04 and on 24th December 2000 at 15h58. Both
these signals related to the Blignauts.
asked whether the computer indicates whether it is activated by a
panic button, the alarm itself or some other reason, PW 12 testified
that if it is a panic button, the word 'emergency/panic' sometimes
appears on the screen but not always. PW 12 informed the
that the inspectors dispatched to attend at the Blignauts were Metro
Simelane and Alfred Malinga.
13 was Lucky Alfred Malinga, an employee of Guard Alert Security. He
testified that on the date in question at 04h32, he received a
message through radio that there was an alarm signal from the
Blignauts. Together his colleague, a Mr Simelane, PW 13 rushed to the
scene and before turning into the driveway, they found Blignaut
Senior sitting on the pavement on the road smoking a cigarette. He
paid no attention to the two, hence they went past him and proceeded
to the house. Mrs Blignaut came to the gate and they enquired from
her the extent of the damage but she never responded to this
question. Instead she told them that PW 13 and his colleague could
not assist her in anyway and that she wanted the RSP. She turned back
and proceeded into the house.
with this unhappy situation, PW 13 and his colleague left and went to
an area from which they could catch a signal in order to inform their
office of the developments. After informing the office, PW 13 then
left in order to convey the staff to their duty posts as time for
that was nigh. Nothing turned on the cross-examination save that PW
13 clarified that when he asked about the extent of the damage, he
had in mind that in most cases when they respond to alarms it is
normally cases of break-ins or attempts and that there is some damage
the sake of convenience, I will proceed with the evidence of PW 15,
Zakhele Simelane, which ties in neatly with that of PW 13. He is also
employed by Guard Alert and confirmed having attended to the
Blignauts with PW 13. His testimony is on all fours with that of PW
13. He proceeded to inform the Court that after dropping PW 13, he
returned to the Blignaut residence and entered the premises as the
RSP were already in attendance. He went into the yard with them but
he never entered the house.
was his testimony that as he walked around with RSP, they were shown
a certain window which was said to have been broken. He then reported
back to the office about the broken window and that somebody was
reportedly killed in the homestead. He testified further that he was
unable to leave a reaction form with the Blignauts as Mr Blignaut was
reluctant to sign it. He returned with it to the office.
cross-examination, PW 13 informed the Court that he returned to the
premises on his own and that the time was shortly after 05h00. He
further informed the Court that in his report on the second visit, he
informed the office that he was unhappy as he had not checked all the
areas he would have liked to and also the fact that he had been
informed that somebody had died or was killed in the homestead. He
was not informed who had died nor was the description of the deceased
given. He testified that a white male was showing the Police around
the home but that it was not Mr Blignaut. There were no questions in
14 was Themba Sukati, the Director of Electrical Engineering and Auto
Gate and Power Fencing in Matsapha. He informed the Court of his
qualifications and experience in electrical fencing, house alarms and
automatic gates. I do not propose traverse PW 14's expert testimony
in great detail. He explained the operation of electric fencing and
stated that it is designed in such a way that when a person tries to
climb, they must not be able to jump over the wires and if a person
gets hold of the electric fence, the energiser gives a pulse every
second and this would give a sharp pain and would push the person
away. The moment the person touches a wire, they create a short
within the body and the monitor senses a problem and sends a signal
and a siren then goes off. It was his evidence that if one puts a
blanket on the wires or touches the wires with gloves on, the alarm
will be triggered.
14 also testified about house alarms. It was his evidence that there
is a control box which operates with infrared detectors placed on
walls. Once a person breaks a beam in a certain area, the alarm is
triggered. He also spoke of "door contacts" placed on doors
that open such that if you open the door, you break the beam between
the top and bottom contacts thus triggering the alarm. The contacts
can be placed on both doors and windows such that if an intruder
breaks a window a signal is given. He also referred to a 3rd system
by which a house owner is given a secret code which is punched into
arm or disarm the alarm. Panic buttons are included in this system so
that if one sees an intruder, one would press the panic button which
sends a signal to a security company or RSP as the case may be.
14 also testified about automatic gates designed for safety and use a
remote control to open and close them. When closed, it should not
allow somebody to push it open and if closed and you push it hard,
you can break the motor or whatever is welded.
cross-examination, it was put to PW 14 that the electric gate at the
Blignauts left a gap between the post and the gate which is wide
enough to enable a person to enter through if opened by hand. PW 14's
response was that that could result from poor installation but he
would not comment thereon as he had not seen the gate then. It was
also put to him that there are bolts which can become loose depicting
on the efficiency of the gate and arm when it closes. PW 14 agreed
that once the bolt fastening the arm gets loose, the motor turns
slightly when one opens or closes the gate such that it does not open
and close fully.
second inspectio in loco of the security systems and the appraisal
thereof was carried out at the Blignaut residence. PW 14 showed the
Court the various components of the electric gate and how it
operated. He locked the gate using the remote and was unable to force
it open to any degree using his hands. Mr Kuny pointed out that one
can use one's hand to move the gate and PW 14 testified that there is
a small amount of play but it is more difficult when one comes from
outside because the pressure is from inside. PW 14 observed that it
looked like somebody was forcing the motor open. His opinion was that
the gate was good and that it would be difficult at that time for a
person to come inside from outside.
the electric fence on top of the wall, it was PW 14's evidence that
the wires were well erected and that from outside, the wall was high
enough, with the electric wires at the centre. He opined that it is
difficult to enter from outside over the wall. He further observed
that the wires are not the right height and assessed the installation
as good but one that could be improved by increasing the height of
the wires to prevent people from going outside easily. The wall was
well erected and quite high from the outside.
14 was asked if it was possible for a person to climb into the
property by scaling the post on the right at the main gate, stepping
onto the wall and jumping inside without touching the electric wire.
This was said to be possible. Regarding the post on the left it was
PW 14's evidence that it was possible if a person could put something
to climb on in
to enter the property. Without using any such thing to assist, it
would take somebody with Bruce Lee's agility to successfully perform
Kletzow made a demonstration and pushed the gate from inside and went
out and vice versa. This according to PW 14 was possible because the
motor is broken. Moving to the water tank area, it was put to PW 14
that the accused climbed over the wall. PW 14 after a demonstration
by the accused stated that it was possible but not easy. The accused
demonstrated how he would leave and enter the premises at the tank
area. My observations will follow in due course.
the main house, PW 14 showed the Court the contacts to the doors and
also pointed to sensors which were littered at various corners in the
house. It was his evidence that if there is an obstruction to the
sensor, it would know there are people but would not trigger the
alarm but there is buzzer. If the alarm is on, it can be triggered.
The witness also showed the Court a keypad next to the main door and
that if a beam was broken, the keypad would flash and reflect that
position and show where the beam is broken. The accused also
volunteered information that there was another keypad in his parents'
bedroom. The Court was also shown panic buttons, notably in Tanya's
bedroom and the accused's bedroom. PW 14's appraisal of the alarm
system is the house was an emphatic excellent.
of Scientific Evidence
support of this catergory of evidence, the Crown called
Superintendent Edward Khomba Ngokha (PW5) of the Forensic Laboratory
of the SAPS. He is employed there as a Chief Forensic Analyst and a
Recording Officer. It was his evidence that on the 23rd February
2001, he received certain exhibits including blood samples, the
deceased's nail scraping, and the accused's clothes. On the 6th July
2001, they received Exhibit 1 and the deceased's clothes. On the 22nd
August 2001, further exhibits were received, including a
multi-coloured mat, plastic carpet, Exhibit 5 (black knife), Exhibit
2 and various carpet fibres distinctly packaged.
was his evidence that on receipt of these exhibits, a preliminary
test was conducted to ascertain whether the stains were blood or not.
DNA was extracted from those exhibits. The first analysis was on
Exhibit 1 and the blood found thereon was that of Tanya and the
The accused's underwear contained Tanya's blood only, whilst the
t-shirt and bermuda shorts contained the accused's blood only. The
nail clipping contained blood of the deceased.
must mention that PW 5 carried his analysis on some of the items
mentioned above on two occasions and obtained the same results. In
cross-examination, it was established that not all the exhibits were
analysed because PW 5 said it is costly, considering that some
investigating officers are untrained and therefor bring exhibits
which will be meaningless to the Court. He said he did not analyse
everything always so as to save the taxpayers' money.
5 testified further under cross-examination that items to be examined
for DNA must be taken good care of, dried appropriately and packaged
and that contamination is to be avoided at all costs. He testified
that as in casu, the accused's clothes were put together initially,
the likelihood of contamination was present. It was also established
that some items like vaginal swabs and the deceased's tampon were not
received by PW 5 for forensic examination.
was also PW 5's evidence that he did not receive the bedclothes,
pillowcases, sheet, duvet cover and the deceased's clothes for
examination. PW 5 informed the Court and this could be seen from the
deceased's clothes that certain portions thereof were cut for
purposes of forensic analysis. It was put to PW 5 that he could not
say merely from the parts analysed that the rest of the portions of
the accused's clothes which contained blood were from the same
sources. To this PW 5 agreed.
5 accepted the suggestion that since the accused is supposed to have
worn the underwear under the bermuda shorts, the blood on the shorts
would possibly soak onto the underwear and that if the accused's
clothes were all put together, there is a high probability that there
would have been contamination. To the latter suggestion, PW 5
testified that the profiles established on each of the items were
clean i.e. of those he analysed. There was no indication of any
contamination, which would in any event have been established by the
was also established in cross-examination that when PW 5 conducted
the second analyses of the accused's clothes, he cut out different
sections and analysed them. He got the same results.
witness who tendered scientific evidence was superintendent Helena
Johanna Ras, a Forensic Analyst at the Forensic Laboratory of the
SAPS. She testified that on the 3rd August 2001, she proceeded to the
Blignaut residence to look for forensic evidence in the house and
there collected some exhibits for forensic analysis. These items of
evidence are mentioned in PW 11's affidavit marked Exhibit "M"
and include presumable blood from various spots in the accused's room
i.e. carpet and door frame, window sill, from the lobby and from the
deceased's room. She also collected exhibits, presumably glass and
took it together with the others for analysis. PW 11 also prepared a
photograph album, depicting certain portions of the house both
outside and inside. The album was marked Exhibit "L".
cross-examination, PW 11 explained the painstaking care she took in
collecting and packaging the exhibits which was in part to avoid
contamination which is possible if exhibits come into contact with
one another. It was her further evidence that not all the items she
collected were actually examined although according to her they were
important. She testified that she did not know why only six (6) of
those items were examined and that if she was in PW 5's position, she
would have analysed all the items.
of the Crown's Evidence Circumstantial Evidence
and except what I will mention herein below, I am of the view that
the evidence tendered by the Crown was reliable, truthful and
therefore credible. Most of the witnesses, notwithstanding searching,
tactful and sometime forceful cross-examination stoop up well thereto
and gave their answers in a forthright manner and in the process
maintaining their evidence in chief. Witnesses who impressed me in
particular were PW1, PW 3, PW 4, PW 8, PW 9, PW 10, PW 12 and PW 14.
PW 14 adduced his evidence fairly, professionally, detachedly and
independently. He was highly impressive as a witness. I do not
however hold any particular criticism against PW 13 and PW 15.
2 was unimpressive as a witness especially when dealing with the
question of his search for fingerprints and his reasons for being
unable to lift more. It is inconceivable that one, if diligently and
conscientiously searched for fingerprints in as many places as PW 2
did, in a house with inhabitants, so early in the morning before any
cleaning is done, that one would manage to come up with only one
finger print. Regarding the reason why he was unable to lift more
fingerprints in some of the crucial areas, PW 2 first told the Court
that the surfaces did not permit of fingerprints being lifted. In
other instances, he stated that he was trained to only lift clear and
identifiable fingerprints which is to say the least doubtful.
would expect, as suggested by Mr Kuny that as a fingerprint lifter
you pick up what ever you can and leave it to persons like PW 4 to
decide what is decipherable and what is not. More importantly, PW 2
later changed his testimony under cross-examination and stated that
the reason why he did not lift more fingerprints from the other
surfaces was that he did not have the powder suitable for those
surfaces with him. Surely, the lifting of fingerprints in a case such
as the present was crucial so much so that efforts to obtain the
missing powders should have been made.
view of the above, the evidence regarding fingerprints is wholly
unsatisfactory and PW 10 Supt. White himself expressed surprise at
how the entire process was carried out or how it failed to fulfil its
purpose. In this regard, it is my view that the fingerprint of the
accused lifted does not advance the Crown's case and would actually
prove nothing, as conceded even by some of the Crown's witnesses, in
view of the fact that the accused lived in that house and would have
had access to the window in question from where the print was lifted
witness in my view failed to collect all the necessary pieces of
evidence as borne by the record. This would include the bedding, the
deceased's clothes, broken pieces of glass and I should mention that
if it was not for Dr Mills' quick remedial action, even the accused's
clothes would not have been submitted for forensic examination. This
lackadaisical approach to investigation should be strongly
discouraged. It is worth noting that some exhibits collected e.g. the
tampon and vaginal swabs submitted for forensic examination and this
is unsatisfactory. One never knows what evidence was contained
2 was also strongly criticised by Mr Kuny for his initial reluctance
to accept Exhibits 5 as an exhibit. I entirely understand the reasons
for his reluctance as he had been on the scene, turned the deceased
over but never saw this knife. When he had left, he was then called,
not to be shown that a knife had been found but told it had been
found and where it had been found. The whole finding of the knife was
suspicious and I find his attitude in view of the foregoing not
untoward and finding of knife highly smacks of the situation of the
scene. I will address this later on in the judgement. In any event,
he eventually took this knife and subjected it to whatever tests he
4 was impressive as a witness. The only note against him was that he
testified that there were 3 strands of electric wire on top of the
Blignaut's residence. In point of fact there five. There was in my
view no intention on the part of the witness to mislead the Court. In
my view he had either forgotten the number or was mistaken.
6 was largely credible and reliable as a witness in my view. The only
point that caused spasms of disquiet was regarding the evidence of PW
1 and PW 4 in particular, who informed the Court that she is the one
who explained to them what had occurred and also took them around,
obviously at different times to show them the various places in the
house connected with the deceased's death.
following exchange took place between PW 6 and Mr Kuny in cross
when the Police arrived, it seems that they relied on you to show
them around because at that stage, Mrs Blignaut and Sean were not
really in a a state to do so.
you showed the Police the scene upstairs as you described in your
evidence; Tanya's bedroom, Sean's bedroom, the hallway and so on
When the Police arrived, I only took them to Tanya's bedroom and from
thereon, they took over from there. I did not show them anything
it is clear that PW 6 changed her answer. If it was her case from the
onset that she only showed the RSP Tanya's room, she should and would
have said so when the first question above was posed. She clearly
contradicted herself, whereas both PW 1 and PW 4 were clear in their
evidence that she took them around. I do not understand how the RSP
could have taken over from Tanya's room on their own, as they had to
check Sean's bedroom and see the kitchen. I therefor disbelieve PW 6
in this regard and believe PW 1 and PW 4 regarding PW 6's role. In
any event, I do not understand what harm she stood to suffer if she
had told the Court that she took the RSP around which I believe was
the case, as that was not a crucial issue. PW 1 and PW 4 would have
no reason in my view to invent the story that she took them around,
particularly in view of the emotional turmoil then experienced by the
Blignauts as testified by PW 6 and PW 8 and which is understandable.
disbelieving PW 6 on this aspect, I however hasten to add that this
does not however mean that the balance of her evidence must be
disbelieved. This would also apply with equal force to PW 2's
evidence as well. In addressing this very issue, Solomon J. had this
to say in R VS KHUMALO 1946 AD 480 AT 484: -
it is no doubt competent for a Court, while rejecting one portion of
the sworn testimony of a witness to accept another portion; but,
where a witness is clearly perjuring herself in matters of great
importance, there should be very strong reasons to justify a Court in
finding that in other respects she is speaking the truth."
also S VS OOSTHUIZEN 1982 (3) SA.571
PW 12, David Sabelo Christie, he appears to have made a mistake
regarding the date when he received the signal from the Blignauts. He
was asked by Mr Maseko as follows :-
the 25th November 2000, did you receive an alarm message?
on the morning of the 26th November 2000 at 04h32.
is common cause from the documentary evidence handed in and the
balance of Christies evidence that this message he refers to was
received on the morning of the 25th November
This would appear to have been nothing but a slip of the tongue on
Christie's part and I draw no adverse inference therefor, in view of
the clear nature of the evidence regarding the date.
10 Supt White also gave impressive evidence. The only point of
criticism was how ever in connection with the conclusions on his
affidavit about the falsity of some aspects of the defence case.
These offensive aspects were readily and correctly conceded by Mr
Maseko, which if allowed would have amounted to PW 10 usurping the
functions of the Court in deciding on issues of truthfulness or the
falsity of accounts adduced before Court. See S VS VAN AS 1991 (2)
SACR 74 (w). In other respects, PW 10's evidence was admissible as PW
10 is an expert in examining scenes of crime and could form opinions
regarding the facts proved or matters observed by him during an
inspection of the scene of crime which would assist the Court.
other contradiction that I should mention was regarding the nature of
the injuries sustained by the accused on his body. PW 8 Dr Mazibuko
described these as abrasions while PW 9 Dr Mills described them as
superficial lacerations. Faced with two different opinions medical
practitioners, it is my view that this Court will have to decide the
most preferable opinion. It is however important to note that both
practitioners are ad idem that these wounds were observed on the body
of the accused. Both were also ad idem that the injuries on the
accused's hands were lacerations and they expressed their opinions
regarding how much bleeding would have been expected from the wounds.
of Scientific Evidence
in this category was adduced mainly by PW 5 Supt. Ngokha and Supt.
Ras (PW 11). Strictly speaking, the evidence of the two Doctors
should have been considered here but I am of the view that their
evidence fitted best in the earlier catergory. Both PW 5 and PW 11,
in my view adduced their evidence fairly impartially. I have no
reason to criticise their evidence, save to point out that Mr Kuny
took issue with PW 5's failure to analyse all the exhibits brought to
him. This attack, in view of the peculiar circumstances of this case
is justified but is no reflection on PW 5 as a witness. As I have
said, he acquitted himself commendably as a witness. I should however
reiterate the comments in S VS NTHATI EN 'N ANDER 1997 (1) SACR 90
(OPA), the head note of which reads as follows;-
witnesses ought to undertake their investigations with the utmost
care and accuracy especially in criminal cases where the guilt or
innocence of the accused often depends, largely and sometimes
exclusively, on the evidence of such witness. "
Bohn, in his article "Implementation of DNA - Fingerprinting as
a forensic identification text in South Africa, SALJ Vol.104 Part II,
May 1987 at page 307-308 had this to say about DNA:-
DNA embodies the complete genetic make-up of an individual;
accordingly, any trace of human material should yield sufficient
information necessary for unequivocal identification .... The test
consists of a comparison of the DNA extracted from human material,
including skin, blood, semen, sputum, and hair roots found at the
scene of the crime or upon (or in) the person of the victim, on the
one hand, with the DNA extracted from a sample of any human material
taken from the suspect, on the other. "
evidence is now becoming widely accepted in many jurisdiction as
evidence on which the Court may exclusively rely for determining the
guilt or innocence of an accused. D.N.A. stands for disoxyribonucleic
acid, a chemical in the form of long-chain polymers and is found in
all living organisms, where it represents the code of life.
casu, the defence in this case did not contest the admission of this
evidence nor the results of the tests carried out. In dealing with
DNA evidence, Van Oosten J. had this to say about the in S VS MAQHINA
2001 (1) SACR 241 (TPD) P in the head note:-
Where the State's proof of the accused's guilt depended on the
results of scientific analyses, the testing process, including the
control measures applied, had to be executed and recorded with such
care that at any time later it could be verified by any objective
scientist and fortiori eventually also the trial court. "
in my view was done by PW 5 and his results could have been verified.
DW1 himself confirmed that the tests had been correctly done. It is
my view that DNA evidence should be admissible in appropriate cases
as conclusive evidence, regard had to PW 5's
statistical evidence, which I unreservedly accept. In casu doubts
were expressed about the sampling in order detract from the
conclusions of the evidence, and I will deal with that aspect later.
S VS R AND OTHERS 2000 (1) SACR 33 (WLD) at 39C, Willis J. had this
to say about DNA testing.
my view there are substantial benefits to be derived from harnessing
the advances in modern science to the law. When it comes to rape
cases DNA testing can be especially helpful."
share the above sentiments and add that DNA testing can also be
extremely helpful in cases like the present when collection of
exhibits, packaging, sampling and testing is properly done.
defence called Dr David Joseph Klatzow (DW1), a forensic expert of
considerable experience and training. He informed the Court on how
scenes of the crime should be treated in order to preserve the
integrity of the evidence. He also informed the Court of the details
of how evidence should be properly collected from a scene of crime.
It was his evidence, in view of the accused's evidence that there was
an intruder and that there was a struggle between the accused and the
intruder - the latter killed the deceased that the deceased's clothes
should have been impounded and examined for some sign of the alleged
assailant. The bedclothes should, he continued also have been
examined for hair and fibre in order to trace the alleged intruder.
1 also punched holes in the manner in which the deceased's clothes
were handled and eventually packaged, which would have made it highly
likely that contamination would have occurred. DW 1 did however
conclude that PW 5 had done his analysis correctly but failed to
state why contamination did not occur as it was clear that all the
accused's items of clothing gave a clean profile. He suggested that
this could have been due to a sampling problem.
1 also criticised PW 5 for not examining all of the exhibits brought
to him. It was his view that had PW 5 done that the accused's
allegation that there was intruder could have been proved or
disproved immediately, particularly by analysing the items of
evidence collected by PW 11.
1 was also asked to comment on the ability of a person hurriedly
leaving the accused's room. DW1 informed the Court that it would be
difficult for him to adduce expert evidence on that issue but would
comment purely from observation. It was in his view unlikely that a
person could have dived through the window as the person would have
been severely injured in that process and there were no signs, I must
mention of injury. It was his view that if a person had used an
object in the room to break the window, jumped onto the window and
dropped the remaining distance, it would have been a considerable
feat which would have been bolstered by an examination of all the
items in the accused's room e.g. chairs, and other objects for the
presence of glass. Furthermore, the broken pieces of glass would have
had to be carefully collected. DW 1 was careful to emphasise that he
was, in giving the answer venturing into the realm of speculation.
response to PW 10's evidence that if the intruder had left through
the window by climbing onto the window sill, he would have dropped
the glass on the window sill, DW 1 agreed with that proposition. He
was however quick to point out that not every single piece of glass
would have fallen off in the process. It was important also to
examine the remaining pieces of glass and the window sill for
1 was asked to comment on whether in view of the rain on the night in
question any traces would have been left by the intruder when he
jumped or fell out of the window. D W 1's view was that the rain
could possibly enhance the evidence of an intruder. In this regard,
if the grass was hard, it is possible the intruder could have left
the barest of impressions. If on the other hand, the grass was soft
and sodden with rain, it would be more likely that he would have left
a mark, depending on how he fell. He also pointed out that the rain
could have had the effect of degrading some of the evidence by
washing away bloodstains off the grass and glass fragments. In short
the rain could preserve or destroy the evidence, depending on the
cross-examination, DW1 confirmed that PW 5 had correctly done the
analysis and the test worked correctly. Regarding the contamination,
DW1 stated that given the facts there was a high likelihood of
contamination which would have however been detected but there was no
contamination. DW 1 could not explain why there was no contamination
given how the accused's clothes were packaged and handed to RSP. He
testified that he could give no good and rational explanation and
said it could have been one of those rare cases of chance or the
reflection of a sampling problem and that if additional samples had
been analysed the issue may have been cleared.
1 testified that given the fact that there was no cross-transfer
between the bermuda shorts and the underpants did suggest that at
some time the accused was wearing the underpants only. He however
reverted to the issue of sampling as having been a probable cause for
further on the question of there being no contamination from the
accused's Bermuda shorts to the underwear, DW 1 concluded that it
defies logic and suggests that those were not worn at the same time,
meaning that the evidence given is wrong. There was no re-examination
of this witness.
2 was the accused person who adduced sworn testimony. He testified
that at the time of his arrest in December 2000, he was working with
his father in the family business, supplying office equipment. He
told the Court that the deceased was his first cousin in that their
mothers are sisters. It was his evidence that Tanya's parents live in
Zimbabwe but at some stage they lived in Nelspruit, South Africa,
where they stayed on Farm. During this time, the accused who, was
studying in Nelspruit would visit Tanya's parents from time to time
and would stay with them on weekends.
accused further testified as follows: - That he is a year older than
Tanya and that at the time of her death he was 23 years old and she
was 22. Tanya had come to South Africa to complete her final
examination in accountancy and took time to visit some friends in
Nelspruit. She thereafter decided to visit the accused's family at
Pine Valley after her final examinations and had been in Swaziland
for a week before her death. This was not Tanya's first visit to the
Tanya's relationship with the accused, the Court was informed that he
considered Tanya as the sister he never had and that she was
particularly close to his mother and was close to Blignaut Senior and
the accused's brother. There had never been any conflict or
disagreement between Tanya and the accused. Tanya, would normally
hang around with the accused's mother during the day and the accused
would only manage to see her after work in the evenings or during the
lunch hour if he went home for lunch.
to the accused, Tanya did not have a friend and only knew two (2)
people in Mbabane. He denied that there was anything more between him
and Tanya except that they were very close friends. The accused
confirmed that around November 2000, he had an affair with PW 6, a
married woman who lived next door to the Blignauts. It was his
evidence that his parents did not approve of this relationship,
particularly his father.
the events of the evening of the 24th November, the accused testified
that he, Tanya and PW 6 went out in his car to Mantenga Hotel. His
parents also left for another engagement. At Mantenga, the accused
and Tanya shared a meal, while PW 5 did not eat any food. They all
enjoyed some beverages, the accused imbibing beer, while the ladies
had cider. They were in the company of Paolo Seabra and Sergio Villa
Pouca who had also come with their friends. The accused and the
ladies stayed for about an hour, playing the game of pool. They had
arrived there at or about 7-8pm.
later proceeded to Malandela's Restaurant, where young people of the
accused's age group congregated on Fridays at night. One Russell
Jones, the accused's friend kept Tanya's company as they had met the
previous Wednesday. Their meeting was by pre-arrangement. The
accused's mother was a worrying parent, particularly if they were
out. For that reason, Tanya called her on the cellular telephone and
told her where they were. In all it was the accused's evidence that
he had about four to five beers that night at Malandela's, while the
ladies drank cider.
was the accused's evidence that a relationship, albeit new, had
developed between Jones and Tanya and that both were very interested
in each other, which according to the accused made him happy. To see
Tanya happy made the accused happy, he said. In particular, this was
because he knew Jones very well. Tanya was happy that night and so
was he and PW6.
01h00, they left Malandelas. The accused and PW 6 left in the
accused's motor vehicle, in order to have some private time together.
Tanya and Jones were to have their private time too and it was
arranged that they would travel back to Mbabane in different motor
vehicles - the accused with PW 6 and Tanya with Jones. Before
leaving, Paolo Seabra had joined them at Malandelas and it was agreed
that they would all meet at Paolo's house in Mbabane behind the
Swaziland College of Technology.
accused's car had to stop at the Engen Garage in Mbabane due to over
heating. They poured water into engine there and also bought some
cigarettes, as both the accused and PW 6 were smokers. On arrival at
Paolo's house, the accused saw Paolo's vehicle and rang a bell to
alert Paolo of their presence but to no avail. The accused decided to
drive away from Paolo's house as his car was attracting the attention
of some dogs. They stopped some distance away from Paolo's house.
thereafter, Tanya and Jones arrived in the latter's motor vehicle.
The accused's vehicle had by then developed a starting problem. Jones
undertook to tow the accused's vehicle but it soon returned to
working order. The trio, i.e. Tanya, PW 6 and the accused then drove
home arriving at around lh30. It was misty and drizzling well; infact
raining heavily that night. They dropped PW 6 at her gate and entered
arrival, they entered the house and immediately announced their
arrival to the accused's parents, assuring them they were fine. Both
Tanya and the accused went down to the kitchen to get glasses of
water which they took to their respective rooms. In the kitchen, the
accused noticed that that the top half of the stable door was open
and he had been asked by his mother to lock it before but he had
forgotten. It was the accused's evidence that it was not unusual for
them to leave the doors and windows open as they felt very secure in
accused testified that the burglar alarm was not armed that night and
that this was a regular occurrence because from previous experiences,
there was a number of false alarms for which the security company
charged. The accused's parents therefore decided that the alarm would
only be armed if they were all away on holiday or there was nobody in
was the accused's further evidence that quite a few windows were left
open in the house to allow the cats entry and exit to and from the
house. In particular, the kitchen window and one in the accused's
parents' bedroom were left open for the cats. The accused could not
recall if the kitchen window was open that night.
accused, who did not usually brush his teeth before going to bed went
straight to his bedroom while Tanya was brushing her teeth. The
accused took off his jeans before sleeping and put on the clothes
referred to above earlier i.e. the bermuda shorts and t-shirt. He
slept with his underwear on. An hour later, whilst deep in sleep, the
accused heard a scream for help, which woke him up. He decided to
check on Tanya and noticed that her door was opened whereas she
usually closes it i.e. leaving a little space.
looking into the room, although it was dark, the accused noticed a
figure on top of Tanya, facing the direction of the wall. According
to the accused, there was some light coming through the window facing
the road and which enabled him to notice the deceased in the room. It
was the accused's evidence that he could not see whether the figure
was that of a man or woman. No sounds were emanating from that room
and the accused could not see what the figure was doing.
realising that there was the figure on the bed, the accused
immediately realised it was an intruder and he dived onto the bed,
calling for his father at the same time. He dived onto the intruder,
who felt like he was strong and agile. A struggle ensued between the
two and it was then that the accused noticed that the intruder had a
weapon. The intruder got off from the accused's grip. The accused
then got off the bed with a view to blocking the door. The intruder
confronted the accused, at the sometime swinging arms at him. The
accused retreated towards the door then fell down. The intruder ran
past and entered the accused's room.
was the accused's evidence that he does not recall when he sustained
the cuts on his hands; whether whilst on the bed or when retreating.
He fell next to the toilet door outside Tanya's bedroom. The accused
said he lost sight of the intruder but immediately thereafter heard
the glass break. By then Blignaut Senior had arrived and he switched
on the lights in the hallway. On arrival, Blignaut Senior proceeded
to Tanya's bedroom to check on her.
Blignaut also came. Blignaut Senior told his wife to call the RSP and
the ambulance but she was too shocked to do anything. Blignaut Senior
had to telephone the RSP himself.
was the accused's further evidence that he did not recall whether he
went into his room to see in relation to the broken glass. He stated
that he faintly remembered looking out of the broken window whilst it
was still dark. The only time he realised his hands were cut was when
his father switched on the lights in the passage. The accused further
testified that he was bleeding and the blood from his hands went onto
his shirt and shorts. They were however not bleeding much, but just
accused testified also that he did not see whether any of his blood
fell on to the carpet but presumed that it did. The accused was shown
certain photographs depicting blood on the hallway. It was his
evidence that he could not tell which blood was his. He testified
that he was in a bewildered state as he sat in the hallway and it was
his first time to experience real fear and shock. Asked if he thought
of running out to trace the intruder's tracks, the accused told the
Court that he was afraid and after his father arrived, he allowed him
to take over as the authoritative figure.
PW 6 came and bandaged his hands and PW 9 also arrived. The RSP also
arrived and he made a statement to the RSP. PW 6 assisted take off
his clothes and bathed him. It was the accused's story that he was
aware of the blood on his clothes but did not believe the actual
amount of blood, especially on the clothes because the hands were not
bleeding much. The only presumption was that the blood on the shorts
came on the shorts when he dived onto the bed. The accused said his
clothes were placed on the floor outside the third bedroom in a
plastic bag. Dr Mills changed the bandages after the RSP left and the
bandages and clothes were put in the plastic bag although he was not
aware who did so.
accused told the Court that he jumped over the wall to meet PW 5 and
did not use the main gate as his parents' bedroom was close to the
gate and when it closes it makes noise which would have drawn their
attention. He left the property and again entered in the tank area.
was his evidence that he had to be very careful in climbing the
electric fence at it would otherwise trigger the alarm. It took him a
bit of practice though. He mentioned that a pole
assisted him in re-entering the property was no longer there. The
accused further told the Court that he was not aware how and when he
sustained the injuries on the shoulder, arms and neck. He denied that
these were self-inflicted. It was his evidence that he presumed that
the injuries resulted from the incident that night. He could not tell
whether those injuries were bleeding or not and did not know whether
they were of any significance.
accused denied having bought drugs and trying to smoke them that
night. It was his evidence that he was unaware as to why PW 5 said he
did. He confessed to having had drug problems in the past but kicked
the habit after attending a rehabilitation centre in Johannesburg for
six (6) weeks. The accused told the Court that he did not have any
reason to attack and kill Tanya.
cross-examination the accused was taxed on why he decided to have an
affair with a married woman and to not to keep it a secret. He
proceeded to also confirm the relationship between members of his
family and Tanya and the events of the night in question, as
testified in his evidence in chief. On the issue of the purchase of
drugs that night, the accused told the Court that he did not know why
PW 5 said that he did purchase them but confirmed that PW 5 had been
with him on a number of occasions when he went to buy drugs at the
same house previously. He was of the view that she was mistakenly
referring to one of those previous incidents.
asked why PW 5 would lie against him, especial regard being had to
the fact that she was very clear about the events of that night and
informed the Court that the accused even asked PW 5 to come over to
the driver's seat, the accused said he had no idea why she would
concoct a story against him. He told the Court that PW 5 used to
visit him in prison but at some stage stopped. He said he was in no
position to comment on her reason for concocting the story.
was put to the accused that she had no reason to lie against him and
that she was in fact telling the Court the truth. The accused told
the Court that he had no comment on that. He was extensively
cross-examined on the use of drugs and his reasons therefor I will
not dedicate much to time to that.
the events leading to the discovery of Tanya dead in her bedroom, it
was the accused's story that he heard her scream and that must have
been shortly after 03h00. Asked to recount the events of the morning
in question, the accused did so and told the Court that he noticed a
figure in Tanya's bedroom on the bed and it was in a sitting position
facing the left hand wall. The accused informed the Court that when
he dived onto the bed in a bid to apprehend the intruder, he
encountered the intruder face to face on the bed. The accused could
not recall on which hand the intruder was holding the weapon.
According to the accused's estimation, the scuffle between him and
the intruder lasted roughly 30 seconds.
accused was asked as to why he did not close the door in order to
keep the intruder in the room, the accused mentioned that many
thoughts were crossing his mind and looking at the events in
retrospect, there are many other options he could have exercised e.g.
closing the door, reporting to his parents first and pushing the
to describe the intruder, the accused told the Court that the
intruder was smaller than the accused in stature and was very agile
and strong. He was also not taller than the accused. He was asked
where exactly on Tanya the intruder was i.e. in relation to the
photographs of the scene and the accused said he could not give an
exact answer as it was dark. When reminded that there was actually
some light coming through, this the accused conceded but told the
Court that his attention was not focussed on the intruder's position
vis-a-vis Tanya but on the intruder himself. Asked how he could
divide his attention between the intruder's position on Tanya's and
the intruder himself, the accused was hard pressed to say. He ended
up telling the Court that the intruder was in a sleeping position on
top of Tanya.
accused confirmed having stated in his evidence in chief that he
could not tell whether the intruder was male or female. He also
confirmed that immediately thereafter, he referred to the intruder as
a "he". It was his evidence that could not recall the stage
when he realised that the intruder was male but told the Court that
it was during the struggle. The agility and strength of the intruder
convinced the accused that the intruder was a male person.
accused confirmed that after the struggle and as he retreated from
the bed, he fell down or was pushed by the intruder and the intruder
ran past him into the accused's bedroom.
asked as to where the intruder went past him, the accused told the
Court that he could not remember the place but that it was near the
door of the toilet. The accused confirmed that there was a
considerable distance between Tanya's bedroom and the toilet door but
he could not recall as to where he fell because it was not important
accused further told the Court that he did not try to follow the
intruder after he heard the glass break in his bedroom. Taxed as to
his reasons for not pursuing the intruder, the accused attributed
this to his state of bewilderment resulting from what had taken place
i.e. struggle with intruder. It was his evidence, when put to him
that he did not put up a fight against the intruder, that he tried
his best under the circumstances but admitted that the was slow.
accused was also asked whether he heard the dogs bark after the
intruder escaped and he told the Court that he did not recall the
dogs barking. When asked to confirm that the dogs are vicious, the
accused said that the word vicious is strong and that the dogs were
just under vicious but were adequate to scare people. He testified
that the dogs would bark in such a way as to scare strangers and that
he could ordinarily hear them bark from his room.
accused further confirmed that during the scuffle with the intruder
he had his clothes on i.e. t-shirt, bermuda shorts and underwear and
that he at no stage took them off. It was the accused's evidence that
he did not remember when he sustained the injuries on his upper body
but confirmed that he did not have them before he went to bed. He
however presumed that he sustained the injuries during the scuffle.
The accused emphatically denied having been injured after the
struggle and after the intruder had escaped.
accused told the Court that he did not recall when he sustained the
injuries on his fingers. He only realised that he had been injured
when his father turned on the lights in the hallway. It was his
evidence that they were however from his encounter with the intruder.
When asked if he does not feel pain whilst he is sustaining a cut,
the accused said from previous experiences you do feel the pain when
you get cut, but if you know you are going to cut. In this case
however, it was the accused's evidence that he felt the pain from the
wounds after his father had entered the hallway and had switched the
was the accused's evidence that he noticed the wounds on his upper
body when he was in the bathroom about to be bathed. He confirmed
that he must have been wearing the t-shirt when he sustained the
injuries on his upper body. The accused was asked as to whether he
had any other physical contact with the intruder save the encounter
on the bed and he confirmed saying in his evidence in chief, it was
once and on the bed. He now hinted at a second instance and during
which he could have sustained injuries on the hands and upper body.
This he said could have been when he was backing away from the
intruder, and as the latter was coming towards the accused swinging
was put to the accused that the injuries on his upper body were
self-inflicted in order to simulate the scene as if somebody had
attacked Tanya. The accused said he had no comment. He later said it
is untrue and when asked why he took long to give a straight answer,
the accused blamed this to nerves. He denied, when put to him that he
had killed Tanya. He further denied when put to him that there was no
intruder in the house that night. The accused was asked if he was
attracted to Tanya and he, after some hesitation denied this.
asked if he was wearing the bermuda shorts when he went to attack the
intruder, the accused told the Court he was. It was his evidence that
he was surprised that the blood on the underwear was the deceased's
whereas that on the bermuda shorts was his. He denied having worn the
underpants on top of the shorts.
re-examination, the accused was asked if during the dive onto the bed
he did come into contact with the blood on the bed and he confirmed
this. He further told the Court that the t-shirt was hanging out on
top of the bermuda shorts. The accused further told the Court that
when he returned with Tanya, he closed the stable door and locked it.
He also informed the Court that after coming into physical contact
with the intruder, he then knew that it was a male.
of the Defence Evidence.
Kletzow (DW 1) was in my view a good witness, who due to experience
in Court and his knowledge of the subject gave a good account of
himself. He tendered good, fair and balanced evidence and was loathe
to commit himself on matters that were not within his
of competence and would give his answers in those matters subject to
that basic and overriding understanding.
accused was in my view unsatisfactory as a witness. In some cases, he
was very shifty and at times avoided proffering straight answers to
questions which would be regarded as straight forward. In other
cases, I formed the distinct impression and came to the conclusion
that he was lying and trying to mislead the Court. There is a litany
of examples regarding the above catergory of cases.
the accused contradicted himself on the question of the intruder's
posture on the bed. In examination in chief, he testified that the
intruder was on top of Tanya facing the direction of the wall. In
cross-examination, he said the figure was on the bed, in sort of a
sitting position facing the headboard of the bed and he had no idea
what the intruder was doing. Later, still in cross-examination, the
accused now said the intruder was sitting on Tanya, the accused
answered as follows: -
Lord, I apologise, I will try my very best. I think my Lord, what I
can say is that one becomes accustomed to a shape that is sleeping in
a bed. That is how I can say the intruder was on top of her. That is
why I can say I have become accustomed to the shape of her body in
above extract suggests that the intruder was lying on top of Tanya.
Earlier, and leading to the above answer, the accused said the
intruder was sitting on top of Tanya.
had grave difficulty explaining if Tanya made any movements whilst
the intruder was on the bed or on top of her, attributing this to the
fact that his concentration was on the intruder and not on Tanya. He
could also not give an exact answer as to which part of Tanya the
intruder was sitting on because it was dark. When reminded of the
light coming through the window he then confirmed that he could see
where Tanya was from that light but his attention was not focussed on
the position of the intruder on Tanya. He was focussing on the
intruder. He could not explain how he could separate the two.
manner in which and how he sustained the injuries was also highly
unsatisfactory. He gave the Court the impression that he only feels
the pain when being cut only if he knows
he will be cut, which is absurd. There is no way that one could
sustain the injuries that the accused sustained and would not feel
the pain until afterwards. This is a lie. This is more so if one
considers the manner in which Dr Mills described the injuries and the
sharp nature of the weapon used.
was also clear from the accused's demeanour that he was lying when he
told the Court that the dogs were not vicious. He described them as
"less than vicious and not vicious vicious". The expression
on his face clearly gave him away. In one instance, he blamed his
uncomfortableness to nerves when his idling was raised by
cross-examination. This, I reject as previous to the, the accused had
given a good account of himself, both in examination in chief and
accused also testified that Dr Mills removed the bandages from him
when he examined the wounds at the accused's home and put them
together with the deceased's clothes. However, according to both Dr
Mills and PW 5, the bandages were not removed. It was not even
suggested to any of the two that the bandages were removed from the
accused and placed in the black plastic bag. Even PW 9 did not find
these amongst the deceased clothes. If he had, he would undoubtedly
have said so. The accused's evidence is in this regard untrue and is
was also the issue that the house alarm had been disarmed because of
the frequency of false alarms and that on the day in question, the
alarm had not been activated. Clearly, this is a lie as it is clear
from the evidence of Christie and the documentary evidence filed by
him that there was a false alarm on the 24th November 2000. The
accused informed the Court that a decision to switch it off had been
taken some time before. In fact, this aspect, which must have been
known to the accused should have been put to the Crown's witnesses,
including the RSP, de Sousa and PW 14 Sukati, and the officers from
Guard Alert, particularly Christie. This falls to be regarded as an
should be remembered that cross-examination does not only entail
challenging particular items of evidence adduced by the other party's
witnesses. It also entails putting important and crucial aspects of
one's case to the other party's witnesses. To the extent that views
may differ as to whether the aspects to be put or not put are
important, it is preferable to put
entire defence case as will advance the accused's case and prove his
innocence. Anything less will inevitably justify an adverse inference
far as the accused's defence is concerned in this case, it should
have put or at the least suggested to the witnesses referred to above
that the accused will say that the alarm was not functional and had
been disarmed some time ago to avoid the costs incurred as a result
of false alarms. The failure to do so by the defence clearly
justifies adverse inference advocated for by Mr Maseko that this was
an afterthought. This was in my view a very crucial issue which at
least de Sousa who knew a lot about the Blignauts and to some extent
the security measures and Christie, who operated the control room had
to be given an opportunity to comment on. I agree with Mr Maseko and
I accordingly draw that inference.
unsatisfactory aspect of the accused's evidence was with regard to
the manner in which the intruder came to the accused swinging his
arms. Asked as to how the movements were made, the accused informed
the Court that he could not remember how the movements were and that
it was dark. Later in cross-examination, the accused is on record
stating that he saw that the intruder was swinging arms at him and he
proceeded to demonstrate to the Court the swinging movements made by
the intruder. Can his evidence on either issue be believed then? The
whole question of how dark it was in the Tanya's room the effect of
the light coming through the window on his ability to see was to say
the least very shifty and unimpressive.
one instance, when the accused was asked about whether he felt
rejected, in connection with his drug problem, he pretended not to
know what the word rejection means. I had to intervene to get to him
to answer that question and which he did without any further
explanation of the word being rendered necessary. I should mention
also that the accused failed to challenge PW 5's evidence that he
bought drugs on the fateful night. She had no reason to concoct this
story and when put to the accused that what she had told the Court
was in fact true, the accused said he had no comment. I do find for a
fact therefor that the accused did purchase drugs during that night.
All in all, I was unimpressed with the accused as a witness, although
his euphony may have led an unwary mind to other conclusions.
this a homicide or a suicide?
is a question that was not raised by either party, as both sides, as
I understand were ad idem that this was a case of homicide, the only
outstanding issue being the identity of the perpetrator. I do however
find myself in duty bound to enquire into and rule upon this issue,
lest it be argued or submitted that this was a possibility to which
the Court paid no attention.
Knight, in his work entitled, "Simpson's Forensic Medicine,"
10th Edition, 1991 at page 121 states the following regarding
suicidal knife wounds;-
knife wounds have a characteristic pattern, though very occasionally
even these can be simulated by a murderer. The hallmark of
self-infliction (whether suicidal or self-mutilating) is repetition,
there being a number of group incisions, usually parallel or closer
together. The most usual place for these in suicide or suicidal
attempts is on the inner surface of wrists and on the throat, where
they are called 'tentative' or 'trial' incisions. The cuts are made
superficially at first, often deepening as determination increases."
J. Geberth, "Practical Homicide Investigations - Tactics,
Procedures and Forensic Techniques", 3rd Edition CRC Press, 1996
at page 364 states as follows:-
the victim used a knife to commit suicide the wounds will usually be
on the throat or wrist...The investigator should closely examine
slashing type wounds for evidence of hesitation marks which appear as
parallel slashes alongside the mortal wound and are indicative of
page 123, the above author records that a homicidal cut throat is
usually more severe and lacks tentative trial incisions. In this
regard, one should also consider the differences in suicidal and
homicidal throat wounds as found in Simpson, "Taylor's
Principles and Practice of Medical Jurisprudence," Vol.1, 12th
Edition, Churchill Ltd, 1965, at page 213 to 214. One of the factors
indicative of the fact that Tanya's death was homicidal is the
location of the weapon. In suicide, the weapon should be present,
indeed often firmly grasped by cardiac spasm. In homicides, the
weapon is sometimes present but usually
by the murderer. In casu, the weapon was found outside the house,
some distance from the scene of the deceased's death. There is also
no indication from the evidence that there was anything in the
deceased's behaviour, whether on arrival from Nelspruit or
thereafter, which could have set suicide alarm suspicion bells
ringing. To the contrary, the evidence is that Tanya was joyous and
happy up to the last minute when she was seen alive. There was also
no suicide note found explaining the reasons why she would have opted
to commit suicide.
view of the foregoing, I am of the view and firm conviction that the
deceased's death was homicidal rather than suicidal and I expect that
Counsel on both sides should agree.
being a case which in large measure is predicated upon circumstantial
evidence, it is inevitable that the Court has to reason by inference.
In this case, there are clearly disputed facts which the Crown seeks
to prove by inference. In R VS BLOM 1939 AD 188 at 202 -203,
Watermeyer J.A. stated the following trenchant remarks regarding
reasoning by inference: -
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
inference sought to be drawn must be consistent with all proved
facts. If it is not, the inference cannot be drawn.
proved facts should be such that they exclude every reasonable
inference from them save the one 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."
seeking to rely on reasoning by inference, I will caution myself, not
to venture into the realm of conjecture, or surmise assumption or
speculation, as carefully pointed out by Lord Wright in CASWELL VS
POWELL DUFFRYN ASSOCIATED COLLIERIES LTD
AC 152 at 169  3 ALL ER 722 AT 733. Lord Wright formulated the
admonition in the following language:-
must be carefully distinguished from conjecture or speculation. There
can be no inference unless there are objective facts from which to
infer the other facts which it is sought to establish...But if there
are no positive proved facts from which the inference can be made the
method of inference fails and what is left is mere speculation or
question to be asked and eventually determined is whether the
inference to be drawn in this matter, regard had the conspectus of
facts is that the accused killed the deceased and that no other
reasonable inference can be drawn from the objective facts proved. In
drawing the inference on the accused's guilt or innocence, as the
case may be, I take due cognisance of the instructive remarks of
Davis A J.A. in REX VS DE VILLIERS 1944 AD 493 at 508 where the
following lapidary remarks appear: -
Court must not take each circumstance separately and give the accused
the benefit of the doubt as to the inference to be drawn from each
one so taken. It must carefully weigh the cumulative effect of all of
them together, and it is only after it has done so that the accused
is entitled to the benefit of any reasonable doubt which it may have
as to whether the inference of guilt is the only inference which can
be reasonably be drawn. To put the matter in another way; the Crown
must satisfy the Court, not that each separate fact is inconsistent
with the innocence of the accused, but that the evidence as a whole
is beyond reasonable doubt inconsistent with such innocence."
the Law to the Facts
Crown seeks the Court to draw the inference of guilt from both the
circumstantial and forensic evidence. The Court can only come to that
conclusion if it rejects as not only improbable but beyond reasonable
doubt false the accused's story that there was an intruder in the
house who must have killed the deceased.
Entry into the Property.
members of the RSP, notably PW1, PW 2, PW 4 and PW 9, carefully
looked around the wall, some of them both inside and outside in order
to ascertain if there were any signs of an intruder who could have
scaled the wall and jumped over the fence. This painstaking search
could not yield results. According to their evidence, and they were
not shaken in this, there were no signs of marks over the wall where
this intruder could have entered and/or left the premises.
should not lose sight of the fact that it was a wet day, it having
rained heavily the previous night and was raining intermittently on
the day in question. According to PW 1, the ground outside the wall
was wet and slippery. It is my finding, in view of the evidence that
had an intruder entered the premises by scaling the wall, then some
mud marks on the wall would have been visible, given the weather that
night and the bright colour of the paint, which is pink. According to
PW 9, it appeared that the wall had been recently painted.
absence of the marks aside, there is an electric fence on top of the
wall, which has the effect of electrocuting an intruder if he touched
it, thereby setting off the siren at the gate at the same time.
Clearly, the siren did not go off otherwise evidence of it having
done so would have been adduced. Furthermore, having been to the
premises on two separate occasions during inspections in loco, it is
my finding that climbing the wall, particularly from the outside is
extremely difficult, especially in view of the electric fence on top.
There is no way that an intruder, who would have been making the
first attempt over the wall and fence would, not only leave no marks,
but also fail to touch the wires, thus causing the siren to go off.
In point of fact, the accused testified that he had to perfect the
stunts in order not to touch the wires and this took a lot of
practice according to him. He did, during the demonstration touch the
wall and would have left marks had he not taken off his shoes.
Secondly, he did touch the electric wires during his attempts, both
when jumping out of the property and when he climbed in. If a great
deal of training is required to perfect it for a resident in the
house, how much more for the intruder, in his one off attempt?
was suggested by Mr Kuny that the intruder could have jumped in next
to the main gate using the gateposts in part to gain entry. Again,
there were no signs of mud marks on the wall in those areas.
Furthermore, the wall there is quite high, if no marks could be
imprinted on the wall, then, the intruder would have used something
to assist him to climb. There was no sign of such an item, which the
RSP would have readily seen. According to PW 14, the wall was well
erected and was high enough to present a formidable obstacle to an
intruder, particularly one coming from outside.
possibility suggested, which could have provided egress and ingress
to the alleged intruder was the main gate which, it was submitted
could be pushed open by a person on foot, allowing enough play to
enable that person to enter on foot. In this regard, a demonstration
was undertaken by Mr Blignaut Senior and Dr Kletzow on two separate
occasions. It is clear though that for one to do that, excessive
force must be applied. This was confirmed by PW 6 under
Blignaut Senior had to use so much force that some part of the motor
appears to have been damaged. I saw small metal fragments on the
ground, immediately after the gate gave way. This could account for
the observation by the expert PW 14 that the gate could be opened
"because the motor is broken and that is why one can be able to
move in and out although the gate is supposed to be closed". Dr
Kletzow also had to use excessive force to open that gate.
come to the conclusion that on the evidence there is nothing to
suggest that the intruder could have used the gate for the following
reasons:- Firstly, as observed and as confirmed by testimony,
excessive force was required to be applied to force the gate open by
a person who knew it can be forced open. Would an intruder do the
same? I think not. Secondly, it was the accused's evidence that he
avoided entering or leaving through the gate during his immoral
escapades with PW 6 because it made noise and was overlooked by the
accused's parents' bedroom and toilet.
the gate was forced open by the intruder, then, the accused's parents
would have probably heard, considering that they had slept barely an
hour earlier, as according to the accused, he woke them up to
announce that they were back and safe. More importantly, there are
dogs on the property. According to the evidence, which was not
dogs are allowed to roam around the entire property during the night
and a foot gate which would otherwise limit their access to the
entire yard is kept open at night. The accused is on record as having
testified that the dogs did not bark that night. I may add that and
it is a finding of fact that the dogs are vicious from the evidence
of PW 6 and the fact that they had to be locked up during the time
the RSP made investigations and I may mention, even during both times
when the Court conducted an inspectio in loco.
may mention that even in the accused's attempted understatement of
the dogs' vicious propensities, they would bark to scare a stranger
away. In this case, it would mean that the intruder entered the
property, leaving no mark and raising no siren, or if he went through
the gate, he was not heard and not detected by the dogs, went into
the house (and I will examine this later) undetected, left the house,
still undetected by the dogs, left the property, again without
leaving any mark or trail. Only supernatural beings are capable of
achieving this feat, particularly where one is in danger of being
detected at any time and has to do everything in haste. Room for
mistakes and traces is just inevitable.
entry into the House.
the evidence, nobody saw where the alleged intruder entered the
house. The story told to the Police on arrival at the scene was that
it was suspected that he entered through an open window in the
kitchen and which is left open to enable cats to enter and leave the
house during the course of the night.
to the evidence of PW 10 Supt. White, it is possible for a person to
enter using this window and it is common cause that there are no
burglar bars on all the windows. From my observation, these are not
the ordinary windows that can be opened to their full extent. There
is a latch which allows them to open to a limited extent. Whilst a
person may be able to enter through the window, I must mention that
for fully grown and normal human beings, entry through that window
should pose grave difficulties.
to the evidence of the RSP mentioned above, there was no trace
whatsoever of or a mark left by the intruder whether on the window
sill, sink or on the floor tiles in the kitchen. One should bear in
mind that the ground was wet and muddy, whichever way he entered. It
is my view, given the conspectus of facts that the intruder would
have left some
in the kitchen. He clearly was not an invited guest who would have
had the time and opportunity to meticulously wipe and clean his shoes
to avoid detection. This is the marked distinction between the RSP
and the alleged intruder, when Mr Kuny enquired why the intruder
would be expected to leave some marks behind when the RSP did not. As
PW 4 eloquently answered, the RSP are in any event disciplined
other difficulty with the theory that the intruder could have entered
the house using the kitchen window is that the vicious dogs have
their kennels situated next to the kitchen. If indeed the dogs,
vicious as they are, were unable to hear the person enter the yard
which I have discounted, they certainly would have had no difficulty
with an intruder presenting himself to them as it were, next to their
kennels. Even if they are docile, and according to the evidence they
are far from that, they would at least have barked vociferously to at
least draw the attention of the occupants that something was amiss.
This would have caused the intruder to panic a great deal.
also consider that if the intruder did in fact enter through the
kitchen window alleged, there is a sensor on the corner directly
facing that window. For reasons adverted to earlier, I have rejected
the accused's story that the alarm was not armed as a lie. If indeed
the intruder had evaded all the other impediments referred to
earlier, he certainly could not have evaded detection by the sensor.
As a result, the alarm would have been triggered, not only attracting
the attention of the accused and his parents but it would also, as
testified by PW 12 Christie and PW 14, also transmitted signals to
the control room of Radio Link Security. I therefore hold, in view of
the foregoing, that the assumption that the intruder may have entered
through the kitchen window is insupportable and I accordingly reject
Kuny further suggested entry into the house by walking on the roof
near the tank area and entering into one of the windows either in
Tanya's room or in the bathroom or toilet. From the evidence led and
purely from observation, it is clear that this would have been
possible. I say this though not in oblivion to the earlier
consideration and conclusions I arrived at, concerning the absence of
the marks on the wall, the electric wire and of course the vicious
one difficulty that would cause me to discount this as having been a
possibility is that from the evidence, none of the windows were
opened, that morning. An intruder entering a
that he would not be familiar with and as big as the Blignaut
homestead would be expected to leave the window through which he
entered open as an escape route should he find no other exit route.
Mention was made by the accused of another window being left opened
in his parent's bedroom. No credence can be attached to this evidence
as it came up for the first time when the accused adduced evidence in
chief. It was never put to any of the Crown's witnesses. In any
event, I am of the view that this could not have been a possible
point of entry as the intruder would have landed in the accused's
parents' bedroom and would have been detected by them immediately.
into the deceased's bedroom, again, the RSP are on record that there
were no indications of mud or wetness, grass or fibre from outside
the house which would have been expected to be visible on the floor.
It is worth noting in particular that next to the deceased's bed was
a white floor mat on the side where the deceased would have been
killed. From the photographs particularly Exhibit "A1", it
is my view that there is no way that the intruder could have killed
the deceased without stepping on the white mat. According to the
evidence of PW 4, that mat only had blood spots. Had the intruder
stepped onto the mat surely, some trace, however minute would have
Kuny criticised the RSP for not taking the bed sheets, the deceased's
clothes for forensic examination, particularly in the face of the
allegation that there was an intruder. There is force to this
criticism. This would have made assurances about the non-existence of
the intruder doubly sure. Again, the conduct of the RSP must not be
viewed in total oblivion to the other impediments, findings and
observations referred to earlier.
found the fingerprint evidence presented by PW 4 as taking the
Crown's case no further. The evidence of PW 2 on the search for
fingerprints, his failure to find them and the reasons therefor is
completely unsatisfactory and is not worth relying on for finding and
holding that there were no fingerprints of a person other than the
occupants. If a diligent and conscientious search had been made using
all necessary powder, some finger prints ought to have been lifted as
there were people living in that house and who had at the latest, the
previous night touched some items in the house where a search for
finger prints was allegedly made with no success.
my assessment, the manner in which the accused testified about the
intruder was wholly unsatisfactory. Firstly, he informed the Court
that although it was dark, he noticed a figure on top of Tanya. He
said that there was some light in the room from which he could notice
the deceased. Later in his evidence, he told the Court that the
intruder was sitting on top of Tanya and when questioned by the Crown
where on Tanya's body the alleged intruder sat, the accused was very
shifty. It was his evidence that he could not see whether the
intruder was a man or woman but immediately referred to the intruder
as a "he". There was in my view no reason for him to tell
the Court in his evidence in chief that although at first he did not
see whether the intruder was male or female, after the encounter, he
felt that it was a male. This was only stated in re-examination.
to the accused, he ran and dived onto the bed and dived on the
intruder and as I have mentioned, he could not tell where on top of
Tanya the intruder was. He stated that he landed on the bed and that
is how he got the blood on his shorts. I will return to this later.
Of immediate interest is Exhibit "A4", which shows the
direction of the door vis-a-vis the bed where the deceased lay. If
the accused ran and dived on the bed and in the process stained his
shorts with the blood, one would expect that he would have had
difficulty because of the headboard drawer. He would have knocked
himself against it when he landed and in the process, one would have
expected the books, MTN water bottle and the other items on the
drawer to fall off. One should also consider that there was a scuffle
between the accused and the intruder. According to Dr Mills and as
confirmed by the picture, there was no sign of a serious struggle on
the bed. The pillows and other items were not seriously disrupted as
is normally the case during scuffles however short. I will return to
accused also failed dismally to explain to the Court as to when and
how he sustained the injuries on the hands and on his body, be they
lacerations or abrasions and I will not embroil myself in that
debate. Surely, if one gets injured, it does not take a while to know
that you are injured, particularly where a weapon like a knife is
used. The one inescapable conclusion is that these injuries were
self-inflicted or were inflicted with the assistance of others there
present. I say this because if indeed the injuries were suffered in
the manner alleged, particularly those on the deceased's body, which
Dr Mills described as follows under cross-examination:-
looked at them very carefully. They had very linear edges and they
were also very superficial, not deeper than 2mm but they definitely
had linear edges and not ragged edges which would indicate a scratch
or abrasion and as I said, I remember that they had almost looked
like they were done with a scalpel. That is how sharp the instrument
had to be."
interesting features, in considering the Doctor's evidence is that
according to the accused, he was wearing the t-shirt from the moment
he undressed at around 02h00 and at no time did he take it off.
Surprisingly, the t-shirt does not have any cut consistent with the
route of the injuries (lacerations) on the accused's body. One would
have expected if indeed the accused was wearing the t-shirt and such
a sharp instrument was used to injure him that the t-shirt would
itself have sustained some cuts along the route of the injuries.
According to the evidence of Dr Mills, confirmed by my own
observations, there are no cuts on the t-shirt, save the cuts made on
it by Supt. Ngokha for purposes of DNA analysis.
this regard, I refer to Keith Simpson, "Taylor's Principles and
Practice of Medical Jurisprudence" Vol.1, J & A. Churchill
Ltd, London, 12th Edition, 1965 at page 197, where the following
self-inflicted or imputed wounds, if of the nature of cuts or stabs,
there is often lack of correspondence between perforations of the
clothing and the wounds on the person; this is one way in which the
correctness of a statement may be tested."
in this case as adverted to above, there were no perforations
whatsoever on the t-shirt which could be compared to the injuries to
find correspondence, if any. The other reason for finding that these
wounds were self-inflicted is that an intruder, who had brutally
killed Tanya in a maniac-like fashion, would hardly have made
superficial cuts sustained by the accused. The intruder would by that
time mostly likely to be in a murderous mode and the accused would
have constituted a danger that he would be caught. A telling injury,
even if not with intent to kill would have sufficed for the
intruder's purposes to scare the accused away.
to the accused, the scuffle took about 30 seconds and if that
estimation is considered, it is clearly inconceivable that a person
could have inflicted all those wounds and scratches in that time,
which is less than a minute. A look at the injuries on the hands as
appears from Exhibit "01" and "02", shows that
these wounds do not in anyway correspond in order to give credence to
the unsatisfactory explanation proffered as to how these were
sustained. According to the accused, these may have been sustained
when he was retreating and the intruder closing in and swinging arms
at the accused. I am not an forensic expert, but it would appear that
swinging movements would result in cuts rather than the irregular
injuries depicted. How the accused got injured on the outside of the
left thumb remains something of an enigma. One also wonders how the
intruder, in the time given could have scratched the accused on both
sides of the neck in the manner depicted as according to the accused,
the intruder was carrying a weapon, presumably a knife. About the
scratches, one should not forget the evidence of PW 1 that the
deceased's hands were found in a position indicative of her grabbing
something. I acknowledge however that female DNA was found on her
Eckert and James, "Interpretation of Bloodstain Evidence at
Crime Scenes, "CRC Press, 1993 state the following at page 216:
careful examination of bloodstained clothing and footwear often
provides valuable information for accurate reconstruction of a
violent crime. Bloodstain patterns on the clothing of a victim and
assailant may represent the activity, position and movement of each
during and subsequent to an attack or struggle after blood has been
shed...Bloodstain interpretation of patterns on a suspect's clothing
will help confirm or refute explanations offered by the suspect
concerning the reason for his bloodstained clothing. "
to the evidence of PW 5, from the samples taken from the accused's
clothes, the DNA results, some of which were repeated twice,
indicated that the blood on both the shirt and shorts was that of the
accused whereas, the blood on the underwear was the deceased's blood
only. From the results, it is clear that there was no contamination
although the clothes were initially bundled together. There was,
according to PW 5 a clean profile. DW
told the Court that this was inexplicable and could have been a
matter of chance. In the alternative, he attributed this to a
sampling problem. I must hasten to add though that this was a clean
profile and had there been contamination, the tests would have
revealed that. Mr Kuny argued that because PW 5 cut only certain
portions of blood on the accused's clothes, one could not exclude the
possibility that there was blood on the accused clothes which was
neither his nor the deceased's and therefor could be an intruder's
t-shirt had six (6) portions cut off from different parts. Four were
large portion cut off from the front and two (2) cut off from the
back. The bermuda had three (3) large portion cut off from the front.
The underwear was cut on the front, in fact more than half of it was
left. There were bloodstains left in all these items and which were
analysed. The question is whether there is any force in the criticism
of the sampling by the defence. Clearly, one cannot say whose blood
is left on the spots that were not examined.
it possible to say, in view of the analysis that the blood could have
belonged to a third person. As will be noted, the blood was the
deceased's and the accused from the portions analysed. Whether it is
possible that there was blood from a third person must in my view be
considered against the conclusions I made on the possibility of an
intruder entering the premises and eventually the house. There is no
indication from the evidence that the intruder was at all injured in
Tanya's room and there appears to have been no traces of blood on the
broken pieces of glass which PW 2 says he examined. The portions cut
off from the clothes were in most cases large and taken from
different areas of the items in question. That notwithstanding only
the blood of the two was found. I cannot make any finding on the
portions not analysed, save to mention that it is unlikely from the
evidence and results that blood from a third person was on the
this wise, it is also worth considering that the knife itself from
the DNA analysis revealed blood of both the accused and the deceased.
If the intruder was injured and there is no evidence of this, it
would have been by the knife, which showed two sets of blood as
aforesaid. Sadly, some exhibits presented for analysis were never
analysed to see whose blood was in them. But as I say, little value
can be added to this in the light of the earlier conclusions to which
perturbing aspect to this matter is that notwithstanding that the
accused's clothes were blood-stained, he does not explain
satisfactorily how this came about. In cross-examination, he
suggested that the blood from the t-shirt and shorts would have
dripped from the injuries on his hands. The accused's own evidence in
chief about the wounds on his hands was as follows;-
was closing my hands to try and stop them from bleeding. A lot of it
went into my shirt and onto my shorts. If I may add there my Lord,
they weren't bleeding that much. They were just painful."
cross-examining Dr Mills, PW 8, the following transpired in the
battle of wits with Mr Kuny:-
the bandages bloodied?
don't remember if they were, but the wounds weren't bleeding. That is
why I thought it safe to re-bandage them and they could be dealt with
at a later stage.
presumably must have been bleeding at an earlier stage?
could have been but not when I examined them. They were not bleeding
and from what I can remember, the bandages were dry.
the nature of the injury to his hand could have resulted to bleeding?
They would have bled but as I say, they were fairly superficial
and if I, remember, we didn't even apply sutures to them. We just
used plaster sutures or butterfly sutures when we dealt with them
the wounds on the accused's body, i.e. lacerations, according to Dr
Mills, the following interchange occurred between Mr Kuny and Dr
were not bleeding?
Not more than a little ooze."
Mills continued to say these wounds were "extremely
question, in the light of this evidence is where the accused could
have obtained so much of his blood as could be seen on the shorts and
t-shirt. Certainly that much blood could not have emanated from the
injuries described above. What compounds matters is that the blood on
the t-shirt was splattered even at the back. The same applies to the
shorts. How could this blood have come to those areas, as according
to his evidence, the blood from his hands went on to the t-shirt and
the shorts. What about the back, as I have asked?
to the accused, in one of his puerile attempts to explain how he got
the blood, he said it was when he dived onto the bed. From what one
could gather, that blood would have been on the front of the t-shirt
and shorts. In point of fact, not much blood should have been on the
front of the shorts because the t-shirt had not been tucked in. The
reality however is that the shorts were heavily stained in the front
but not the t-shirt. Furthermore, the blood on the front of the
shorts was his blood only and not that of the deceased or any other
blood for that matter. If it was indeed true that he got that blood
during the diving episode, he should have landed on the deceased's
blood. His explanation is accordingly rejected as false and liable to
vexing aspect is that the blood on the shorts was heavy in the front
but strangely did not soak onto the corresponding part of the
underwear. On the shorts was the accused's blood only, whereas the
underwear contained the deceased's blood only. There is no way of
explaining this than as DW1 suggested, namely that at some stage, the
accused was wearing his underwear only when he came into contact with
the deceased's blood. I agree with this inference which renders the
accused's story false and misleading. It is accordingly rejected.
is also the question of the ponds of blood on the hallway, as
depicted in Exhibit "A". From the evidence, this could not
have been the deceased's blood because she was killed on her bed in
the bedroom. There is no evidence that she walked out of the room or
even moved from the bed after she was severely injured. Had that been
the case, and according to the evidence of Dr Mills, the blood would
not have been as contained as it was. Furthermore, that blood could
not have been that of the intruder, (if he was injured at all, and
there is no such evidence) because according to the accused, after he
(accused) fell on the floor next to the bathroom, the intruder went
into the accused's bedroom and escaped. Clearly, he could not have
gone to the toilet/bathroom area to bleed there. The only
is that this blood belonged to the accused. This again leads to
another question, how so much blood when the evidence is that his
wound were not bleeding mush and the blood from his hands was soaked
into the shirt and shorts. This is a mystery and points to one
conclusion that scene was seriously simulated by the accused, either
alone or with some assistance. The latter appears more attractive and
again to the intruder's escape, it is the accused's evidence that he
did not see how the intruder got out of the house. He presumed that
the intruder broke the window in the accused's room and made his
escape. The problem is that on the ground where he landed, given that
it was wet and the ground soft, some mark, indicating that a person
fell or jumped from about five (5) metres landed should have been
visible. According to the RSP, no mark consistent with such landing
was made. Mr Kuny suggested that it would depend on how the person
landed. No concrete positions were suggested which given the rain and
the state of the lawn would have left no indentation.
there were broken pieces of glass on the sill which were left intact.
Clearly, the window is about .80m above the floor and the intruder,
if he used the window to escape would have been expected to step on
there, dropping the broken glass and some foreign material but it was
not so. Furthermore, the dogs would, from the description given,
probably have pursued him, particularly after the glass broke. No
barking was heard from the place where the intruder would have
fallen. Again, there is no trace of his climbing over the fence and
having killed the deceased, and troubled by the accused, he would
have been expected to be panicky, thus increasing his chances of
touching the electric wire and which would have caused the siren to
accused, in his evidence described how close he was to the deceased
and an impression was painted that he would have gone to great
lengths to ensure that she was safe. He admitted that in looking in
retrospect, he did not do enough to at least apprehend the assailant
of the sister he never had. What is however puzzling and telling in
my view is the decision not to run outside, if not to attempt to
apprehend the suspect, to at least try and trace his footsteps and
show these to the RSP when they came. From the evidence, it would
appear that none of them, including the accused's parents did so. The
story that the accused left things to his father to take control does
not impress me at all.
conspectus of all the above quagmires leads me to the one inference
that it is the accused who brutally murdered Tanya and cause her life
to expire at her prime. No other reasonable inference can be drawn
from these facts. The story about an intruder, I should mention,
appeared to be regarded as a possibility by the defence and was never
put to the Crown's witnesses - e.g. where and when the accused saw
the intruder; what he did; the ensuing struggle etc. This issue was
surprisingly mentioned and very vaguely even then by DW1. It was the
accused who for the first time described his encounter with the
elusive intruder. This story must therefor and in view of the
evidence be rejected as false. One will notice when going through the
record that Mr Kuny in cross-examination of the Crown's witness
consistently referred to the intruder as "the alleged intruder".
This would not have been so if his instruction were that there
definitely was an intruder as the accused later testified.
cross-examination, the accused was asked if he was attracted to Tanya
and the following occurred.
Lord, we were just friends and that was it
question is, did you feel attracted to Tanya?
you feel attracted to Tanya, it is a very simple question?
the hesitation Mr Blignaut
I was waiting for my Lord to finish writing down the question.
accused's demeanour in this regard gave him away and this the Crown's
representative noted. It reminds one of the old Chinese saying with
the following rendering:-
witness speak...not with words alone....Their faces their changing
expressions may be pictures which prove the truth of the ancient
Chinese saying that a picture is equal to a thousand words... "
same reaction was witnessed when put to the accused that the injuries
were self-inflicted. He became very shifty and was somewhat
disoriented in giving his answer.
inference to be drawn is that the accused must have gone into the
deceased's bedroom in his underwear, killed the deceased using a
knife from the house. It is inconceivable that an intruder would
supposedly come into a house with such hitech security unarmed,
opting to open cutlery boxes to find a knife and this is what the
Court must believe occurred in casu. If can also reasonably be
inferred that after killing the deceased, the accused then simulated
the scene by inflicting the injuries on himself and may have been
assisted in this regard. He somehow got his own blood and sprinkled
it on his own clothes, and then put them on. This explains why the
blood analysed on the underwear was the deceased's own, whereas that
on his clothes was his own. The window was also broken and the knife
and sharpner thrown outside in order to obfuscate the whole episode.
The proved facts however have shown these efforts to have failed.
all this was being done, it can be inferred that the deceased had
already died. It is after all this preparatory work that Jackie and
Dr Mills were called. According to their evidence, particularly PW 5,
who came about ten (10) minutes before PW 8, the deceased was
ice-cold. In this wise, it is also worth considering that according
to the accused's evidence, Tanya knew very few people and would have
made no enemies during her time in the country as she was with Mrs
Blignaurt at most time. Also curious is that the intruder would break
into the house to kill Tanya when down stairs property normally the
target of thieves like the television set, VCR, Hi-fi set was
available but never interfered with. No thief or intruder would, in
my view enter that house just to kill Tanya.
above proven facts lead me to the only inference that it is the
accused who committed this offence. The motive for the accused
killing Tanya is unknown to this Court but the absence of a known
motive is not per se sufficient to persuade the Court in the face of
such evidence that the accused is not guilty.
is my view that the Crown has in casu discharged the onus upon it as
adumbrated by Rumpff J.A. in S VS RAMA 1966(2) SA 395 (A) at 401,
cited with approval by Diemont J.A. in S VS SAULS AND OTHERS 1981 (3)
SA 172 (AD) at 183:-
my opinion, there is no obligation upon the Crown to close every
which may be said to be open to an accused person. It is sufficient
for the Crown to produce evidence by means of which such a high
degree of probability is raised that the ordinary reasonable man,
after mature consideration, comes to the conclusion that there exists
no reasonable doubt that an accused has committed the crime charged.
He must, in other words be morally certain of the guilt of the
accused's claim to the benefit of a doubt when it may be said to
exist must not be derived from speculation but must rest upon a
reasonable and solid foundation created either by positive evidence
or gathered from reasonable inferences which are not in conflict
with, or outweighed by, the proved facts of the case.
if an accused deliberately takes the risk of giving false evidence in
the hope of being convicted of a less serious crime or even
perchance, escaping conviction altogether and his evidence is
declared to be false and irreconcilable with the proved facts a court
will, in suitable cases be fully justified in rejecting an argument
that, notwithstanding that the accused did not avail himself of the
opportunity to mitigate the gravity of the offence, he should
nevertheless receive the same benefits as if he had done so."
case proves the truthfulness of the remarks that fell from the lips
of Mokama CJ. of Botswana in S VS KALALETSWE AND 2 OTHERS CR. TR.
49/1992, citing with approval Lord Hewitt C.J. in REX VS TAYLOR AND
OTHERS 1930 21 CRIMINAL APPEAL R 20, where the following is stated: -
evidence is very often the best. It is evidence of surrounding
circumstances which by undesigned coincidence is capable of proving a
proposition with the accuracy of mathematics. It is no derogation of
evidence to say that it is circumstantial."
the premises, I return the verdict of guilty as charged.
must however draw to the attention of the RSP the inadequacies
correctly pointed out and I say fairly by Mr Kuny in this matter -
i.e. failure to properly lift fingerprints, failure to take certain
exhibits from the scene, failure to get collected evidence analysed
and the result thereof submitted. Had circumstances been different,
these signs of ineptitude may have led to the benefit of the doubt
ensuring to the accused's benefit and he would be acquitted. The
scapegoats once an acquittal is made will be the Courts who are
described as too ready and happy to acquit "criminals".
Shoddy investigations will never feature as the prime candidate.
Unfortunately, it is beneath the dignity of the Court, when such
baseless accusations are made to defend itself. The Court, judgements
are sufficient for finding the Court's reasoning. It should also be
remembered by all that Judges, in such cases speak in Court
concerning their judgements. No other forum is appropriate or