THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 815/2019

In the matter between:

JASON THOMAS ROHDE
APPELLANT

and

THE STATE                                                                                                  RESPONDENT

Neutral citation:
Rohde v The State (Case no 815/2019) [2021] ZASCA 134
(5 October 2021)
Coram:
SALDULKER, VAN DER MERWE, MOCUMIE and MOKGOHLOA JJA and
POTTERILL AJA
Heard:            16 August 2021
Delivered:
This judgment was handed down electronically by circulation to the parties’
legal representatives by email. It has been published on the Supreme Court
of Appeal website and released to SAFLII. The date and time for hand-down
is deemed to be 09h45 on 5 October 2021.
Summary:
Criminal law – correctness of conviction of murder and obstructing the
course of justice – dependent on whether deceased was manually strangulated – proved
beyond reasonable doubt on evaluation of forensic pathologists’ evidence – own
observations of trial court in respect of exhibit not put to witnesses – deceased not victim
of sustained assault – sentence imposed afresh.

ORDER

On appeal from: Western Cape Division of the High Court, Cape Town (Salie-Hlophe J
sitting as court of first instance):
1  The appeal against the convictions on counts 1 and 2 is dismissed.
2  The appeal against the sentences is upheld.
3  The order of the court a quo in respect of sentence is set aside and replaced with the
following:
‘(a)  On count 1 the accused is sentenced to 15 years’ imprisonment.
(b)  On count 2 the accused is sentenced to three years’ imprisonment.
(c)  The sentence on count 2 is ordered to run concurrently with the sentence on count 1.
(d)  The accused is declared unfit to possess a fire-arm.’
4  The abovementioned sentences are deemed to have been imposed on 27 February
2019.

JUDGMENT

Saldulker and Van der Merwe JJA (Mocumie and Mokgohloa JJA and Potteril AJA
concurring)
Introduction
[1] Over the weekend of Friday 22 July 2016 to Sunday 24 July 2016, a well-known real
estate company held its annual conference at the Spier Hotel near Stellenbosch in the
Western Cape. Mr Jason Thomas Rohde, the chief executive officer of the company,
attended the conference. His wife, Ms Susan Francis Rohde, accompanied him to the
venue and attended the social events associated with the conference. During the morning
of 24 July 2016, however, Ms Rohde (the deceased) was found dead in the bathroom of
their suite at the hotel. This was shocking news, all the more so because the deceased was

only 47 years of age; the caring mother of three adolescent daughters; in excellent health
and a strong-willed and tenacious person.

[2] In due course Mr Rohde (the appellant) was charged in the Western Cape Division
of the High Court with the murder of the deceased (count 1) and with defeating or
obstructing the course of justice (count 2). Count 2 was based on the allegation that
subsequent to the murder of the deceased, the appellant had rearranged the scene of the
crime in an attempt to represent that the deceased had committed suicide. The matter
proceeded to trial before Salie-Hlophe J. After a protracted hearing the trial court convicted
the appellant on both counts. It sentenced him to an effective term of imprisonment of
20 years, that is, 18 years’ imprisonment on count 1 and five years’ imprisonment on
count 2, of which three years’ imprisonment were ordered to be served concurrently with
the sentence on count 1. The trial court refused the appellant’s application for leave to
appeal against the convictions and sentences, but this Court subsequently granted him
such leave to appeal.

[3] The issue at the heart of the appeal is whether the deceased died as a result of
smothering and/or manual strangulation, as the respondent alleged, or whether she
committed suicide by hanging herself from a hook affixed to the inside of the bathroom door
with the use of the cord of an electric hair curler, as was the appellant’s case. The central
question is whether the respondent proved beyond a reasonable doubt that the deceased
had been killed or whether there was a reasonable possibility that she might have
committed suicide. If it was proved that the deceased had been smothered and/or throttled
to death by hand, the convictions on both counts must stand. That is so because there is
no doubt that only the appellant could have killed the deceased and altered the crime scene
to resemble a suicide by hanging. If, on the other hand, there is a reasonable possibility
that the deceased took her own life, the appellant, would, of course, be entitled to an
acquittal on both counts. As we shall show, the answer to the question turns principally on
the expert forensic pathological evidence, which we analyse in detail below. The evidence
of the pathologists must be considered against the background and in the context of the
evidence set out below.

Background
[4] During the middle of 2015, the appellant entered into a clandestine extramarital affair
with a co-employee, Ms Jolene Alterskye. This was revealed to the deceased on
28 February 2016, when she discovered a card that Ms Alterskye had left for the appellant
in his luggage. True to her character, the deceased immediately confronted the appellant.
The appellant admitted the love affair. On the instructions of the deceased he called
Ms Alterskye there and then, with his cell phone on speaker, and called off the affair.
Nevertheless, as could be expected, the appellant’s affair had a profound effect on the
deceased’s emotional state and on the state of their matrimonial relationship. As a result,
the deceased attended several sessions with a psychologist, Ms Jane Francis Newcombe.
The couple also underwent marriage counselling under the guidance of Ms Carol Nader.
Both Ms Newcombe and Ms Nader testified at the trial. Unbeknown to the deceased and
to Ms Newcombe and Ms Nader, however, the appellant had in the meantime rekindled the
love affair with Ms Alterskye.

Evidence concerning the deceased’s mental state
[5] Ms Newcombe is a psychologist that the deceased consulted. They had eight
sessions since May 2016. During these sessions the deceased informed Ms Newcombe
that her husband had an extramarital relationship with Ms Alterskye. The affair had begun
in June 2015. Although the appellant made a commitment to stop the affair, the deceased
found it difficult to cope with the fact that the appellant had lied to her, struggled to overcome
the appellant’s infidelity and to cope with the hurt and anguish caused thereby.

[6] The deceased said that the appellant was frustrated about her anxieties and was
irritated with her constantly talking about the affair. The deceased wanted to repair the
relationship with the appellant but found it difficult to manage the anger and the turmoil that
she felt. She said that the affair had turned her life upside down. The deceased feared that
she and the appellant would continue to treat each other badly, that she would continue to
live in fear and that her family would be exposed to the tension at home. Their marital
relationship had been loving, but became distant.

[7] The deceased was anxious when the appellant travelled to Cape Town for his work.
She did not tell her family or friends about the affair lest the appellant would be held
responsible or disliked. All their friends saw them as a perfect couple. There was no one to
talk to about what was happening to her emotionally. This was distressing to her as she
was trying to deal with her problems on her own.

[8] The deceased informed Ms Newcombe that the appellant was angry because she
wanted to accompany him to the conference in Stellenbosch and was looking for reasons
for her not to attend. The deceased wanted to attend the conference for her and the
appellant to be seen as a strong, intimate couple and so that Ms Alterskye would not think
that there was space for her to be in a relationship with the appellant.

[9] In the last session with Ms Newcombe, there was a discussion to the effect that if
she discovered that the affair was still ongoing, the deceased planned to leave the
conference and go to her sister who resided in Cape Town. On the Friday evening of the
conference, the deceased called her from the Spier Hotel and told her that she had been
complimented at the conference for being beautiful and that she had no reason to feel
threatened by younger women. Ms Newcombe considered that the deceased was
distressed, anxious but not depressed. They had discussed that the deceased had nothing
to be ashamed about and was entitled to be there. During the conversation between her
and the deceased, which lasted about ten minutes, the deceased came across as being in
control and ready to engage in the activities of the evening at the hotel. Later that same
evening, she received a message from the deceased that said that she had greeted
Ms Alterskye and that she wished she never had to meet her again.

[10] Ms Newcombe was of the view that the deceased had not given up on life and had
several protective factors which would have prevented her from being suicidal.
The deceased was very involved with and invested in her children. She cared about their
development and discipline. She was involved in charitable work in her community.
She had close friends and was well liked by others. There was no evidence of impulsivity
or acting out behaviour. She progressed well during therapeutic sessions, and had no
chronic mental challenges. She gave no indication of potential suicidal behaviour.

[11] Ms Nader was a marriage counsellor to the appellant and the deceased. They had
engaged her in marriage counselling sessions with a view to restoring their marriage
relationship. Their marriage had taken a strain as a result of the appellant’s extramarital
affair. Her early impressions of the behaviour of the deceased during the sessions
concerned her, and she referred the deceased for onward psychological and medical
intervention. Despite Ms Nader’s advice not to do so, the deceased insisted to attend the
upcoming conference at Spier. This took place during their last session on 20 July 2016.
She was informed by the appellant on 27 July 2016 that the deceased had committed
suicide.

[12] Dr Larissa Panieri-Peter is a forensic psychiatrist. She confirmed that the appellant
had during September 2016 been referred to her for an independent psychiatric evaluation.
The purpose was for her to conduct a broad forensic psychiatric assessment as well as to
comment on any findings that might or might not in forensic psychiatric terms be congruent
or incongruent with an intimate partner homicide. In addition, she was requested to conduct
a retrospective independent psychiatric assessment, a so-called psychological autopsy, of
the deceased, based on her known history. She was also specifically requested to comment
on any features pertaining to the deceased that might or might not, in forensic psychiatric
terms, be congruent or incongruent with suicide.1

[13] According to Dr Panieri-Peter, there was evidence from observed facts, reports of
professionals, the appellant, other persons closely linked to the appellant and previous
witness testimonies, that the affair resulted in a drastic change in the deceased’s
demeanour. In addition, Dr Panieri-Peter considered that the deceased’s insecurities,
vulnerabilities, genetic risk factors to suicide, narcissistic traits, perfectionism and need for
the world to see her as being perfect, resulted in the deceased suffering from major
depression which increased her risk of suicide.

1 Psychological autopsy, psychiatric autopsy, retrospective death assessment, reconstructive evaluation and
equivocal death analysis. This is a procedure for investigating a person's death by reconstructing what the
person thought, felt and did preceding his or her death.

[14] She disagreed with Ms Newcombe that the deceased was not a suicide risk. Even
though she confirmed that Ms Newcombe was in a better position than her to make an
assessment, because she had consulted with the deceased personally, she believed that
the deceased was not properly assessed by the psychologist. However, Dr Panieri-Peter’s
evidence was based on what she had been told by unidentified and identified people.
The identified persons did not include family or close friends of the deceased, except for
one of her daughters. They elected not to be interviewed by Dr Panieri-Peter.

[15] Prior to the commencement of the evidence of Dr Panieri-Peter, counsel for the
respondent, who had been furnished with her report, indicated that he objected to
admission of evidence in accordance with the report. The trial court ruled, however, that it
would allow the evidence and that it would ‘decide ultimately what weight to attach to the
evidence of this witness’. The witness proceeded to give the evidence set out above.
She was nevertheless not permitted to conclude her evidence. When the court reconvened
on the following morning, the trial judge, without affording counsel an opportunity to address
her, made the following ruling:
‘In view of the fact that this is my attitude, and unless there’s anything that this witness would like
to draw to the Court’s attention other than what’s set out in the report further examination is
disallowed. It follows that Mr van Niekerk is not required to cross-examine this witness and this
Court furthermore has no questions for this witness.
Accordingly this witness would be excused, thank you.’
We shall revert to the reasons for and the effect of this ruling.

Factual evidence
[16] It is common cause that the appellant called the reception desk at the hotel at 08h22
on 24 July 2016 for assistance to open the bathroom door of the suite. Mr Desmond
Daniels, a maintenance worker, was dispatched to unlock the door. He testified that he had
received a report that the bathroom door could not open. He went to the room and knocked
on the door, which was opened by the appellant. He testified that the appellant informed
him that the bathroom door could not open. He turned the handle of the door but the door
could not open. He used a screwdriver to open the door.

[17] On opening the door, he saw a person’s legs on the floor under the basin. He opened
the door approximately 15 centimeters. The door opened with ease and there was no
resistance when he pushed the door open. He saw the person’s legs from the knees to the
feet. The appellant called out to the deceased and went past Mr Daniels into the bathroom.
He waited outside the bathroom, where he faced the wall. After the appellant went into the
bathroom, there was silence for about 2 to 3 seconds, then the appellant called him to come
and help him.

[18] When he entered the bathroom the appellant asked him to assist in removing an
electric cord from the neck of the deceased. The appellant held her under the arms from
the back so that she faced the witness. The deceased was completely naked and not
breathing, and there was a cord around her neck.  He illustrated how the cord was hanging
around the deceased’s neck and from the hook behind the door. The cord was not tight
around the neck as he could remove it easily with the appellant holding the deceased.
Mr Daniels removed the cord and then went out of the bathroom. The appellant remained
in the bathroom with the deceased in his arms.

[19] He confirmed that the door could be unlocked or locked from the outside by using a
screwdriver, teaspoon or coin. Under cross-examination, he said that he was not told by
the appellant that there was someone inside the bathroom. He opened the door and the
body was not against the door.

[20]  Mr Mark Thompson knew the appellant and worked with him. He attended the
conference at the Spier Hotel. After breakfast on Sunday 24 July 2016 he heard from
colleagues that there was trouble in the appellant’s room. He went there and arrived at the
room at approximately 08h32. He saw the deceased’s body lying on the bathroom floor and
the appellant seated next to her. The appellant asked for help. He had never performed
cardiopulmonary resuscitation (CPR), but he felt he had to do something and proceeded to
heavily compress the deceased’s chest and to blow into her mouth. He attempted to
resuscitate her for between half an hour and 45 minutes. He realised that the deceased’s
body was cold and that she was dead. During this time the appellant also blew into the
deceased’s mouth. The deceased’s nose began to bleed and the witness wiped off the

blood with a tissue and started to compress her chest again. Under cross-examination he
said that even though his arms were aching and he knew that the deceased was dead, he
kept going with the CPR-attempt.

[21] Mr Peter Norton, who is married to the deceased’s sister, was notified on the Sunday
morning of the death of the deceased. He went to the Spier Hotel and found the appellant
there with other relatives, including the father of the deceased, Mr Neville Holmes.
Mr Holmes enquired from the appellant as to what had happened. The appellant explained
that he and the deceased had had a fight. Mr Holmes asked to see the appellant’s hands.
Mr Norton said that he looked at the appellant’s hands when he showed them to Mr Holmes,
and that there were no marks on his hands. The evidence of Mr Norton was not disputed.

[22] It is necessary to make reference to the evidence of Captain Marius Petrus Joubert
and of Colonel Sharlene Otto. Captain Joubert is an expert in forensic crime scene and
bloodstain pattern analysis. Colonel Otto is an expert in DNA analysis. The evidence of
these witnesses was not disputed. Captain Joubert attended the scene on the afternoon of
24 July 2016. He found the body of the deceased still lying on the bathroom floor.
He observed several bloodstains at the scene. A number of the bloodstains were on the
floor in the bedroom, in the passage between the bedroom and the bathroom and in the
bathroom. He also found bloodstains on a pillowcase on the right-hand side of the bed
(looking at it from the foot), on a pillowcase on the floor to the right of the bed, as well as
on the bedsheet and duvet cover. Captain Joubert took extensive photographs of the
scene, including of the body of the deceased and of the bloodstains.

[23] Colonel Otto analysed samples that had been taken from the bloodstains. She found
the DNA of the deceased in the bloodstains on the floor of the passageway and bathroom,
as well as on the duvet cover, the bedsheet, the pillowcase on the bed and the pillowcase
on the bedroom floor. She also detected the DNA of the appellant in samples taken from
the bloodstains on the bathroom floor, the duvet cover and the pillowcase on the bedroom
floor. Captain Joubert expressed the opinion that the bloodstains that had emanated from
the appellant were caused by ‘most probably a very insignificant small cut’ that the appellant
may not have been aware of at the time. He also said that the appellant’s blood may have

been deposited at any stage during his stay in the room, that is, from Friday 22 July 2016.
It was common cause that scrapings that had been taken from underneath the fingernails
of the deceased contained only her DNA.

[24] In his defence, the appellant testified that he had met the deceased in 1989, and
they had married in 1993. They lived in Australia for some years, after which they returned
to South Africa. They had three daughters: their first daughter and then twin daughters.
He described the deceased as a perfectionist who was committed to her goals. She would
deal with confrontation head on, whilst he would shy away from it. He testified that their
relationship had its ups and downs. Whilst their verbal altercations were awful, they never
escalated into physical violence. He said that the deceased was devastated and was
consumed by his affair with Ms Alterskye. Their relationship suffered as the deceased
vacillated between anger and anxiety, which was exacerbated by him withdrawing
emotionally from her. Although they attended sessions with a marriage counsellor, he
continued with the extra-marital affair. He admitted that he had led a double life, lying to the
deceased, his therapist and the marriage counsellor. He testified that the deceased had
insisted on attending the conference at the Spier Hotel. The deceased wanted to ensure
that he was not seeing Ms Alterskye and also to show that he and the deceased were
together. However, the appellant was afraid that the deceased would confront Ms Alterskye
and cause a scene.

[25] They arrived at the Spier Hotel at noon on the Friday. They attended the award
ceremony on the Saturday evening, which ended at about 22h30. On their way to their hotel
room, two co-employees who passed them, invited him to join them at an after-party.
The deceased insisted that they return to the suite and would not let him go. Whilst the
deceased was undressing he went into the bathroom and began to type a message to
Ms Alterskye on his cell phone. The deceased became aware thereof. The deceased was
enraged. He retaliated verbally, and wanted to leave the suite. The deceased attempted to
physically prevent him from leaving the room. They physically grabbed at and pushed each
other. In order to get her out of his way, the appellant grabbed the deceased by the neck
and shoved her. During the altercation she was also struck on the side of her face by the

soft part of his forearm. He insisted that the deceased had not been injured by these actions
at all.

[26] He managed to leave the suite. The deceased followed him. She was wearing a
white towelling gown and no shoes. He got to the room where the after-party was being
held and sat on the bed opposite Ms Alterskye. The deceased stood in the doorway telling
him to leave the room. He was embarrassed and was afraid that there would be an
altercation between Ms Alterskye and the deceased. He got up and left the room. On the
way to their room, the deceased grabbed him from behind. He swung his arm back and hit
her on the nose with his elbow. Her nose did not bleed. On the way the deceased also fell
between a small ledge and a flower bed and cut her toe. In the hotel room the deceased
complained about her bleeding toe. He also noticed a graze on her left eyebrow.
He undressed and got into the bed. He told the deceased that they were ‘finished’.
She continued to rant, calling him an adulterer and a cheat.

[27] He fell asleep and did not know at what time the deceased went to bed. The following
morning at 7 am, the deceased woke him up and informed him that she had received
messages from Ms Alterskye. The deceased was furious and continued to rant. He saw the
deceased walk towards the bathroom and heard her shut the door. He fell asleep again.
Sometime later he woke up, and tried to get into the bathroom to prepare for the conference
breakfast programme. He called out to the deceased to open the door. He thought she was
having a bath. He got dressed. He then phoned the deceased and heard her phone ringing
in the bathroom. He became concerned and called reception for a maintenance person.
He then tried to push the bathroom door open, kicked it and nudged it with his shoulder.

[28] Mr Daniels arrived and the appellant informed him that the bathroom door was
locked. Mr Daniels unlocked the door and stepped back. The appellant opened the door a
couple of inches, until the door was blocked. The door only partially opened as the
deceased was behind the door. The deceased was hanging behind the door in a crouched
position. He picked up the deceased and called Daniels to assist him, as he would not have
been able to remove the cord from her neck. It was not a loose knot but was very tight
around her neck. He testified that Mr Daniels ‘wiggled’ the knot and slipped it over her head.

[29] He testified that the cord depicted in photographs taken by the police is exactly how
the cord was tied to the hook and how the cord was left. He indicated that he had no
recollection of how many times the cord was wrapped around her neck. However, he was
certain that the tension was taut. He immediately laid the deceased down. Before he
proceeded with mouth-to-mouth breathing and chest compressions, he noticed saliva
coming out of the left side of the deceased’s mouth. He had not previously done CPR.
He blew into her mouth and continued to do this until Mr Thompson arrived. He, together
with Mr Thompson, continued performing CPR until the paramedics arrived, who after
performing certain tests declared the deceased dead on the scene. He denied having
caused the deceased's death, in any manner, and further denied obstructing the course of
justice by tampering with the scene.

Pathologists’ evidence
[30] Four specialist pathologists testified at the trial. The respondent called Dr Akmal
Coetzee-Khan and Dr Deidrè Kay Abrahams. Dr Geanas Perumal and Dr Isak Adriaan
Johannes Loftus testified for the defence.

[31] Dr Coetzee-Khan testified that he was employed by the Department of Health of the
Western Cape Provincial Government at the Vredenburg Forensic Pathology Laboratory.
Its area of responsibility included the district of Stellenbosch. Dr Coetzee-Khan is an
experienced forensic pathologist. By July 2016 he had performed nearly 3 000 medical-
legal post-mortem examinations. These included a significant number of cases of hanging,
strangulation and suffocation.

[32] At the request of the South African Police Service (SAPS), Dr Coetzee-Khan
attended the scene at the Spier Hotel on 24 July 2016. He arrived there at approximately
12h45. He made notes of his observations immediately after the completion of his
inspection of the scene. He made use of these notes to compile an incident scene report
on 28 July 2016. The injuries to the deceased that he had observed on the scene were
more fully described in the report of the post-mortem examination of the body of the
deceased that we shall refer to shortly. However, there are a few aspects of Dr Coetzee-

Khan’s incident scene report and his evidence in respect thereto, that need mentioning in
the light of the argument presented to us on behalf of the appellant.

[33] In the incident scene report, Dr Coetzee-Khan stated that the death of the deceased
took place at approximately 05h40 on 24 July 2016. In his evidence in chief he explained
that he had based this estimation on a calculation that death had occurred 7 hours and
30 minutes prior to 13h10 (when the calculation was made). He said that this meant that
there was a 95 percent probability that death occurred at 05h40, with the possibility of a
2.8 hour (2 hours and 48 minutes) deviation either way.

[34] During cross-examination, however, he conceded that he had misinterpreted the
chart generally used for calculating estimations of this nature (referred to as a nomogram).
The nomogram provides a crude estimate of time of death based on the actual or adjusted
rectal temperature of the body, the mass of the body and the relevant ambient temperature.
Dr Coetzee-Khan conceded that on the temperatures and mass that he had applied to the
nomogram, he should have said that there was a 95 percent probability that death had
occurred during the period from 2 hours 48 minutes prior to 05h40 to 2 hours 48 minutes
subsequent to 05h40, that is, between 02h52 and 08h28.

[35] Dr Coetzee-Khan also stated in the incident report:
‘Post-mortem lividity is well established, fixed and located posteriorly with contact pallor over the
shoulder blades and buttocks. There is no lividity noted anteriorly over the lower limbs. The features
of lividity is not consistent with death in an upright position. The post-mortem lividity would indicate
death in a supine and lying position.’
He reiterated this position in his evidence in chief.

[36] Lividity is reddish or blueish colouring caused by hypostasis. Hypostasis can for
present purposes be described as the accumulation of blood in the lower parts of a body
after death, as a result of gravity. The parts of the body that were in contact with the relevant
surface at the time when hypostasis developed would typically not exhibit lividity but pallor
(paleness). Post-mortem lividity generally commences within 30 to 60 minutes after death,

takes about three to four hours to establish and should be completely established after
about six hours.

[37] During cross-examination Dr Coetzee-Khan accepted that hypostasis and lividity
could only indicate the position of the body at the time when they developed. Thus, if a
person dies in a vertical position but the body is within 30 to 60 minutes thereafter placed
in a horizontal position, lividity would be established in the horizontal position. In the light
hereof, Dr Coetzee-Khan conceded that the lividity that he had observed could be
consistent with the deceased being placed on her back on the bathroom floor within 30 to
60 minutes after she had died as a result of hanging.

[38] In the incident scene report Dr Coetzee-Khan stated that he had recommended to
the SAPS that the case be investigated as a possible homicide, that the appellant be
examined for injuries and that his passport ‘be removed until investigative process is
complete to prevent him fleeing the country’. When he was taken to task in cross-
examination for making these recommendations, he said that the first two
recommendations had been based on his observations at the scene and the last on his
previous experiences when potential suspects had fled the country. He commented that it
was up to the SAPS to accept or ignore the recommendations.

[39] Dr Coetzee-Khan performed the autopsy on the deceased on 26 July 2016 at the
Paarl Forensic Pathology Laboratory. He continuously made contemporaneous notes of
his observations and findings during the procedure. He used these notes to compile the
formal medical-legal post-mortem examination report that was handed in as an exhibit at
the trial. More than 150 colour photographs that had been taken during the autopsy, were
also handed in as exhibits.

[40] External examination of the body by Dr Coetzee-Khan revealed that the deceased
had sustained multiple fresh bruises, abrasions and scratch marks. In view of the findings
of the court a quo that we shall deal with in due course, it is necessary to tabulate these
injuries. There were abrasions to the right inferior temporal scalp and right lateral upper
neck. There was a scratch mark on the angle of the right lower jaw, a scratch mark on the

left lower jaw and three scratch marks on the left interior neck. Dr Coetzee-Khan opined
that the scratch marks were caused by fingernails. He also observed a haematoma to the
left upper eyelid with an associated abrasion. This indicated blunt trauma to the face.

[41] He noted an abrasion on the left shoulder with associated bruising. These injuries
indicated blunt trauma in the nature of having fallen on or been dragged over a rough
surface. There was bruising of the left knee and anterior lower legs. He found bruising and
abrasion marks on the knuckles of the left hand, as well as bruising of the left wrist and
forearm. The injuries to the arm, wrist and hand were defence type injuries. Dr Coetzee-
Khan noted small abrasions on the big toe and second toe of the left foot and the second
toe of the right foot. It was accepted at the trial that the deceased was a person that bruised
easily. When the appellant’s aforesaid version was put to Dr Coetzee-Khan, his response
was to the effect that he accepted that most of the aforementioned bruises and abrasions
(but not the scratch marks) could be consistent therewith.

[42] Dr Coetzee-Khan testified that there was a contusion of the posterior scalp.
A contusion usually means a bruise (haematoma) that does not involve the skin. This was
an indication of blunt force to the back of the head. When this was questioned in cross-
examination, Dr Coetzee-Khan convincingly explained that he had cut into the scalp
contusion to ensure that it was not an artefact (a defect or abnormality that occurred after
death).

[43] He detected fractures of the third, fourth and fifth ribs anteriorly on the right-hand
side, with surrounding haemorrhages (bleeding) of the intercostal muscles. He also
observed haemorrhages of the right anterior chest wall which was indicative of blunt force
or trauma to that side of the chest. He conceded that the rib fractures and associated
haemorrhages might have been caused by a vigorous attempt at CPR, especially by an
unskilled person. He said that there was no fracture of the left ribs and pointed out that this
was borne out by the relevant photographs. He further testified that there was contusion of
both lungs anteriorly. He accepted, however, that CPR could also have caused the bruising
of the lungs.

[44] Dr Coetzee-Khan noted pallor over the tip of the nose, as well as the upper and
lower lips. The nose was also slightly deviated to the right. He said that in combination with
pharyngeal soft tissue haemorrhages and congestion (increased blood circulation) at the
base of the tongue, these features were consistent with external airway obstruction
(smothering). He did also say, however, that on its own, pallor is not diagnostic of
smothering and that congestion is a non-specific indication of asphyxia (lack of oxygen).

[45] There was no food in the stomach. It did, however, contain approximately 100
millilitres of fluid consisting predominantly of blood. In addition, the small intestines
contained 100 to 200 millilitres of altered blood. As there was no source of this blood in the
digestive channel (such as an ulcer), the deceased must have swallowed the blood.
This meant that over a period of time she had swallowed what was referred to in evidence
as a cup of blood (the ingested blood). She could only have done so whilst alive.
Dr Coetzee-Khan’s opinion was that the contusions of the lungs had been the source of the
ingested blood. He said that she had most likely coughed up the blood before ingesting it.

[46] Dr Coetzee-Khan proceeded to give a detailed description of a ligature imprint on
the neck of the deceased. In this regard the expert witnesses were agreed that in the case
of hanging with a ligature around the neck, friction would generally cause abrasion (removal
of the superficial layer of the skin), leading to vital reaction of the skin and tissue affected
by the ligature. The vital reaction would cause the ligature imprint post mortem to have a
parchment-like (parched) and leathery appearance. If, on the other hand, a ligature was
applied post mortem, there could be no vital reaction and the ligature imprint would have a
blanched or pale character. There may in such a case be some redness above and below
the ligature mark, but that would not be vital reaction but simply displacement of the blood
from the blanched area (hyperaemia). One could feel the parched and leathery character
of an ante-mortem ligature mark. It therefore goes without saying that for purposes of
determining whether a ligature imprint was made before or after death, a physical
examination thereof should be preferred over the viewing of photographs of the ligature
imprint.

[47] The witness testified that the ligature mark was incomplete. It was situated only on
the front and left sides of the neck. It was put to Dr Coetzee-Khan that Dr Perumal had
observed a more or less horizontal linear mark at the back of the neck and he was shown
photographs thereof. He responded that the mark might have been an artefact caused by
the wooden block that had been placed underneath the neck/shoulder area for purposes of
dissection of the neck. He pointed out that the mark at the back of the neck on the
photographs did not appear parched or leathery.

[48] The mark was more or less horizontal but sloped slightly upwards where it
terminated just before the right ear. On the left, it did not enter into the hairline. He said that
the mark was not parched or leathery. He testified that the reddened area that could be
seen above and below the ligature mark on the left side of the neck, was not vital reaction
but post-mortem displacement of blood. He said that in his experience the use of the cord
of the electric hair curler on the scene for hanging, would, unlike a softer ligature such as a
scarf, have caused friction abrasion. Thus, the absence of vital reaction and resultant
parched and leathery imprint was not consistent with ante-mortem application of the
ligature.

[49] The experts also agreed that in attempting to determine whether this was a case of
hanging or manual strangulation, it was crucial to perform a bloodless neck dissection.
The essence of this procedure is the creation of a bloodless field by draining as much blood
as possible from the neck area, followed by a layered dissection of the muscles and tissue
of the neck. Because the neck tissue is dissected layer by layer, it is not possible to repeat
this procedure.

[50] During the bloodless neck dissection performed by Dr Coetzee-Khan, he detected
multiple haemorrhages. He detected these haemorrhages at the following locations in the
neck: (a) the right sternocleidomastoid muscles; (b) the left sternocleidomastoid muscles;
(c) the left anterior neck muscle under the jaw; (d) the left anterior muscles of the cervical
spine column; (e) the right submandibular gland; (f) the left para-tracheal lymph node and
soft tissue; and (g) the left thyroid-hyoid ligaments and left side of the thyroid gland.

[51] He also observed a fracture of the left superior horn of the thyroid cartilage, with
surrounding haemorrhages, indicative of ante-mortem fracture. He dissected the hyoid
bone out. This is a u-shaped bone between the chin and the thyroid gland that supports the
tongue muscles. The hyoid bone was intact. This was clearly depicted on a photograph.
There were, however, haemorrhages to the left of the hyoid bone.

[52] For convenience, and unless the context indicates otherwise, we refer to the fracture
of the thyroid cartilage and the aforesaid haemorrhages collectively as ‘the neck injuries’.
All the neck injuries were located well above the ligature mark. Some of them were directly
underneath scratch marks that we have referred to. Importantly, a number of the neck
injuries were situated deep into the structures of the neck. The neck injuries thus indicated
that considerable force had been applied to the neck that was unrelated to the ligature
imprint. The neck injuries were situated on both sides of the neck and were consistent with
strangulation by hand. Dr Coetzee-Khan concluded that these observations were
consistent with asphyxia following manual strangulation and external airway obstruction
and that the features of the ligature imprint were consistent with post-mortem application to
the neck.

[53] Dr Abrahams testified that she was the head of the clinical unit of the Paarl Forensic
Pathology Laboratory and as such she was the superior of Dr Coetzee-Khan. She said that
she had performed approximately 9 000 autopsies, many of which were similar to the case
in question. She attended the autopsy of the body of the deceased at the request of
Dr Coetzee-Khan, to provide ‘a second pair of eyes’, as it was presumed that the case
would attract a lot of attention. Dr Abrahams confirmed the observations of Dr Coetzee-
Khan at the autopsy in all respects. She said that they found that the deceased had been
manually strangled and that there was evidence of external airway obstruction or
suffocation.

[54] Dr Perumal had been in private practice as a forensic pathologist from 1994 to 2016.
During 2016 he took up an appointment as chief forensic pathologist of the Department of
Health of the Mpumalanga Province. He is a very experienced forensic pathologist, having
performed in excess of 10 000 autopsies.

[55] Dr Perumal performed a second autopsy on the body of the deceased on
1 August 2016 in Braamfontein. He also took photographs of the body. He explained that
for various reasons a second autopsy is not ideal. These reasons include that in the
reconstruction process (stitching up) of the body after an autopsy, it is not fully returned to
the original anatomical position, that it is not easy or at times possible to reconstitute
dissected organs or tissue to their original state and that changes are brought about by the
onset of decomposition. To this may be added that some features observed at the first
autopsy may no longer be available, such as, in this case, the ingested blood. Nevertheless,
Dr Perumal’s autopsy confirmed the major part of what had been observed at the first
autopsy. At the conclusion of Dr Perumal’s evidence much of the evidence of Dr Coetzee-
Khan and Dr Abrahams that had been disputed during cross-examination, were no longer
in dispute. In what follows we discuss the remaining areas of dispute, difference or
uncertainty.

[56] Dr Perumal observed that the sixth rib on the right had also been fractured, in
addition to the three rib fractures detected at the first autopsy. He observed ‘a bit of
haemorrhage’ associated with these fractures, which indicated that they had occurred
whilst there was some blood circulation. He also noticed fractures of the second to fifth ribs
on the left. There was no haemorrhage associated with these fractures, which indicated
that they had been sustained after blood circulation ceased. In addition, he observed a
fracture of the middle part of the sternum, also with no associated haemorrhage.

[57] He expressed the opinion that the fractures of the ribs and sternum, the lung
contusions and the haemorrhages of the right interior chest wall could have been caused
by attempted CPR. He said that it was not apparent from the photographs that there was
pallor of the tip of the nose or the lips. He stated that he did not regard pallor of the nose
and lips as objective indicators of smothering. A facial flap dissection, on the other hand,
would reveal whether there were underlying bruises of the facial tissue. Unlike Dr Coetzee-
Khan, Dr Perumal performed a facial flap dissection and found no evidence of smothering.

[58] Dr Perumal testified that the blood in the stomach and altered blood in the small
intestines indicated that there had been two episodes of ingestion of blood. He said that it

was virtually impossible for the ingested blood to have emanated from the pulmonary
contusions, as opposed to a vascular injury in the lung. His opinion was that the ingested
blood had emanated from bleeding of the deviated nose.

[59] Dr Perumal accepted that the application of a smooth ligature after death, would
leave an imprint that was not parched or leathery. In his evidence, Dr Perumal glossed over
what he had recorded in his autopsy report in respect of the ligature mark, an aspect that
we shall return to. He said that ‘making room for changes in the few days . . . I’d rather
defer to the photos taken earlier’. He proceeded to give evidence to the effect that these
photographs (taken by Captain Joubert and at the first autopsy) showed that the bulk of the
ligature mark had a parched and leathery appearance. This formed the basis of his
evidence that, for the most part, the ligature imprint exhibited ante-mortem vital reaction.

[60] Importantly, Dr Perumal did not dispute the evidence that the neck injuries were not
situated underneath the ligature mark but were located well above it. Although he
repeatedly stated that these types of injuries were frequently seen in cases of hanging, he
did not provide an explanation for their distant location from the ligature mark until right at
the end of his evidence in re-examination. There he said that as a result of the pull of the
body in hanging and the convulsions that occur as part of the process of death ‘a lot of the
injuries that are observed, if not all that were observed can be observed in hanging’.

[61] Dr Perumal also referred to the evidence of the appellant that he had observed that
a trickle of saliva flowed from the left corner of the mouth of the deceased. Ultimately his
opinion was encapsulated in the following:
‘I just want to say because, as I explained at various stages, the findings in the neck could well be
as a result of throttling or manual strangulation and I indicate to the Court there are two competing
causes . . ., and the injuries that we see could be seen in both scenarios, but because of the
appearance of the ligature mark and the saliva, I favoured the version that, or the cause of death
that it is more likely to be hanging. The probability is more likely to be hanging. But there is no way
I can stand before this Court and say that manual strangulation . . ., is excluded beyond any
reasonable doubt. So . . ., I’m not saying in this report that that’s the only diagnosis that I’m
entertaining.’

[62] Dr Loftus is a forensic and anatomical pathologist. Since 1994 he practiced
predominantly as an anatomical pathologist. He did not perform an autopsy on the body of
the deceased. His opinions were based on the evidence that had been presented in the
case, especially the photographic evidence.

[63] He agreed with Dr Perumal that the contusions of both lungs could be related to
CPR attempts. He also said that in his opinion the ingested blood did not emanate from the
lung contusions. The reason for this was that had the lung injuries been so serious as to
cause the deceased to cough up and swallow the said quantity of the ingested blood, she
would in all probability also have aspirated (inhaled) blood. Aspirated blood would have
caused a leopard skin appearance of the surface of the lungs and there was no sign thereof.

[64] Unlike Dr Perumal, Dr Loftus was adamant that there was no fracture of the left
superior horn of the thyroid cartilage. He insisted that the defect in the cartilage was an
artefact, caused by an incision during the first autopsy. Also, unlike Dr Perumal, he
attempted to show that some of the neck injuries corresponded directly to the ligature
imprint. We shall analyse this evidence shortly.

Trial court judgment
[65] The trial court found that Ms Newcombe and Ms Nader were reliable witnesses who
gave evidence in a credible and trustworthy manner. In respect of Mr Daniels, it held that
the differences between his statements and his evidence were not material. It said that
notwithstanding the shortcomings in his evidence, it was reliable and credible in all material
respects. The court a quo also accepted the evidence of Mr Thompson. The expert
evidence of Dr Coetzee-Khan and Dr Abrahams impressed the court. It found their
evidence to be trustworthy. It held that the same could not be said of the evidence of
Dr Perumal and Dr Loftus. In essence, the court regarded their evidence as not objective.
Finally, it rejected the evidence of the appellant as not reasonably possibly true.

[66] The court referred to the pillowcase on the bed with bloodstains that had emanated
from the deceased. It can be accepted that two further marks on this pillow were mascara
marks that had originated from the deceased as well. The court said that this pillowcase

had been on the side of the bed where the appellant slept and that the deceased had not
slept on it. The court proceeded to say:
‘The Court is able to see for itself that the markings on this pillow are identical to the markings on
the face of the deceased, as noted at the time of her death. The bloodstain on the left of the pillow,
consistent with the abrasion on her left eye, is imprinted twice on the pillow, one slightly above that
of the other. This is consistent with the imprint caused by a repeat smothering action, consistent
with the pillow being pushed down more than once in order to sustain the pressure on the face of
the deceased and to get a further grip in the course of smothering her.’

[67] As to what had transpired after 07h00 on the morning of 24 July 2016, the court a
quo said that the evidence painted a ‘vivid picture’, which included the following:
‘Heated exchanges on the bed must have led to physical violence. At this point the deceased is on
the right of the accused and in all likelihood he struck a punch at her, whilst on the bed, hitting her
left eye and causing the abrasion to her left occipital bridge with his ring bearing fist. At some point
during this “wrestling match” the accused manually strangled the deceased. The evidence clearly
reveals that the accused manually strangled the deceased and smothered her with a pillow and
exerted pressure on her chest resulting in her ribs being broken. Possibly it was at this point that
the accused sustained a bleeding defensive wound to his finger. For how long he remained in this
position is uncertain, but when he got up, he devised a plan to set a scene telling a story of the
deceased ending her own life.’

Fair trial
[68] In its aforesaid ruling during the testimony of Dr Panieri-Peter, the trial court held
that the whole of her evidence, including the evidence foreshadowed in her report, was
inadmissible. It essentially reasoned that the witness purported to usurp the function of the
court and that the evidence was irrelevant. This was true of some, but not all, of the
evidence of Dr Panieri-Peter. The appellant correctly contended that the evidence of
Dr Panieri-Peter as to whether the deceased had been depressed and had been a suicide
risk, was relevant and admissible. The appellant was entitled to lead this evidence, at least
to counter the contrary evidence of Ms Newcombe and Ms Nader. The court a quo therefore
erred in not allowing this part of the evidence of Dr Panieri-Peter.

[69] We are satisfied, however, that this irregularity did not result in an unfair trial.
The important point is that in her evidence prior to the ruling, Dr Panieri-Peter fully set out
her opinion in this regard and the reasons therefor. That evidence forms part of the record
before us and we are able to afford it the weight that it would deserve. And in the light of
the conclusion that we have reached, it is not necessary to analyse this evidence.

Evaluation of pathologists’ evidence
[70] We now turn to an evaluation of the divergent opinions of the pathologists. It is well
established that this requires a determination of whether and to what extent their opinions
are founded on logical reasoning or are otherwise valid. It is about the cogency of the
underlying reasoning which lead the experts to their conflicting opinions. See Michael and
Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) paras 36-
39; Minister of Transport NO and Another v Du Toit and Another 2007 (1) SA 322 (SCA)
para 16; and Buthelezi v Ndaba 2013 (5) SA 437 (SCA) para 14.

[71] It is true that Dr Coetzee-Khan erred in respect of the estimation of the time of death
and the role of lividity in respect of the cause of death. However, the calculation in terms of
the nomogram could provide no more than a crude estimation. Dr Coetzee-Khan’s incorrect
estimation was made without knowledge of the appellant’s version and could not have been
aimed at discrediting it. We cannot fathom how this could detract from the reliability of the
observations at the first autopsy and resultant conclusions. The same applies to the error
in respect of the role of lividity in the incident scene report. On the evidence as a whole the
contention that the recommendations to the SAPS indicated that Dr Coetzee-Khan had
prejudged the matter, is baseless. At best for the appellant, Dr Coetzee-Khan might have
missed the ligature mark at the back of the neck and/or the post-mortem fractures of the
ribs on the left and the sternum. Even so, in our view, nothing turns hereon.

[72] There were some troubling aspects of the evidence of Dr Abrahams. These included
her stance that a forensic pathologist employed by an accused person would invariably not
be impartial, her attempt to defend the errors in respect of the time of death and the role of
lividity that Dr Coetzee-Khan had conceded and the general rigidity of her opinions.

There is, however, no reason to question the factual corroboration that her evidence
provided to that of Dr Coetzee-Khan.

[73] It will be recalled that Dr Loftus did not perform an autopsy. His suggestion that he
performed a digital bloodless field dissection, was quite inaccurate; he only viewed
photographs. He jumped to conclusions, which he then expressed in the strongest of terms.
To illustrate, he pointed to a darkened area between the clay tiles on the bathroom floor
that was visible on photographs taken by Captain Joubert. There were several such areas
visible on the photograph, but he pointed to the one between the knees of the body of the
deceased on the floor. He not only said that that was fluid, but that it was urine that the
deceased had passed at that spot at the moment when she died. He said:
‘M’Lady, I believe that and I’m saying it from a position of after taking everything into account, I
believe that beyond reasonable doubt the deceased on that morning hanged herself in the
bathroom, she didn’t die, she didn’t die instantaneously, she was rescued if I can call it or taken off
from the ligature mark, off from ligature and she was unsuccessfully resuscitated. In that period
taken off or let’s say since the ligature exerted its face until whenever she passed the urine that was
the process of dying.’

[74] Dr Perumal initially also said that, in his opinion, the thyroid cartilage had
inadvertently been incised during the neck dissection. In his later evidence he made it clear
that he accepted that this was an ante-mortem fracture. This concession had a sound
foundation. Both Dr Coetzee-Khan and Dr Abrahams testified that the neck dissection had
been performed with care, there were haemorrhages associated with the fracture and the
jagged edges thereof could be seen on a close up photograph taken at the first autopsy.
Dr Loftus’s insistence that this was an artefact was not founded on logical reasoning.

[75] As we have said, Dr Loftus attempted to show that (some of) the neck injuries were
in fact spatially related to the ligature mark. In an attempt to show why Dr Coetzee-Khan
and Dr Abrahams had erred in this regard, he said that it was technically difficult to correlate
the external neck injuries with the internal injuries, because of what he termed the
hyperextension of the neck during the bloodless neck dissection. That he had erred in this
regard or why, was not put to Dr Coetzee-Khan in cross examination. Dr Abrahams was

confronted with this but testified that they had taken the possibility of distortion into account.
It apparently did not occur to Dr Loftus that it was infinitely more difficult for him to perform
the correlation exercise at least because, as he lamented, the photographs had been taken
from different angles and distances.

[76] In a presentation that formed part of his evidence, Dr Loftus indicated that the
haemorrhages of the left sternocleidomastoid corresponded with or appeared to
correspond with the ligature mark. His presentation did not deal with any of the other neck
injuries in this manner. In evidence he said that the ‘quite extensive’ haemorrhages of the
submandibular gland were in line with the ligature mark. This was plainly wrong. When he
dealt in evidence with the aforesaid presentation in respect of the haemorrhages of the left
neck muscles, he unexpectedly said that they were in fact not in line with the ligature mark.
He suggested that this did not matter, as these haemorrhages had probably been caused
by severe muscle contractions during a convulsive death. His evidence in respect of the
location of the other neck haemorrhages in relation to the ligature mark was vague and
inconclusive. His evidence on this subject was unconvincing, to say the least.

[77] For these reasons the opinions of Dr Loftus that differed from that of the other
pathologists were unacceptable.

[78] As we have said, for Dr Perumal the parched and leathery appearance of the ligature
mark and the alleged dribbling of saliva tipped the scale in favour of hanging. But this is
what he had to say in respect of the ligature mark in his autopsy report:
‘Ligature imprint, almost circumferential around the neck. The imprint was for the most part,
comprised of a centrally blanched area, averaging 5mm wide. Parts of these blanched areas had
associated hyperaemic areas above and below the blanched imprint. The imprint anteriorly sloped
upwards towards the right. The imprint on the back of the neck was almost transverse but sloped
upwards towards the right. The lack of friction abrasions related to the ligature and the lack of
associated oozing of serous fluid, is the reason why there is no dry, parched leathery ligature mark.
There were bruises in the imprint on the left side anterolaterally. The imprint in this case is consistent
with a smooth ligature like an electrical cord. There were no abrasions or bruises related to the
superior or inferior aspects of the ligature imprint.’

[79] According to the evidence a parched and leathery ligature mark is created when the
‘oozing of serous fluid’ as a result of friction abrasion dries out. Thus, two important
observations must be made. First, this description of the appearance of the ligature mark
was almost identical to that of Dr Coetzee-Khan. Secondly, as we have demonstrated,
Dr Perumal’s evidence was that the smooth electrical cord in question had caused
extensive friction abrasion and a parched and leathery appearance of the ligature imprint.

[80] There was no suggestion in the evidence that the ligature mark could have
undergone a metamorphosis during the period between the first and second autopsies.
By latching onto the earlier photographs to support an opinion directly contrary to his
detailed written report, Dr Perumal illogically and unacceptably adjusted his opinion on a
crucial aspect of the case. It follows that the evidence of Dr Coetzee-Khan and
Dr Abrahams as to the appearance of the ligature mark was correctly accepted.

[81] Only the appellant testified that saliva had dribbled from the deceased’s mouth.
Whatever the reliability of this observation, it could have little weight on its own. Thus, the
main pillar of Dr Perumal’s essential reasoning crumbled. In the circumstances logical
reasoning dictates that the neck injuries were caused by manual strangulation and that the
ligature was applied post mortem.

Final analysis
[82] On the evidence it is reasonably possible that all or most of the bruises and
abrasions that the deceased sustained, could have been caused by the fall and the
altercations that the appellant described. It is not possible to determine how the scalp injury
could have been sustained. Dr Coetzee-Khan conceded that the right rib fractures and the
contusions of the lungs could have been caused by attempted CPR. The opinion of
Dr Perumal that the same could apply to the bleeding of the right anterior chest wall was
well supported by authority.

[83] The trial court erred in finding that the deceased had been smothered. There are
three reasons why this finding cannot stand. The first is that the trial court made a material
factual error. The pillowcase that it examined had been found on the right hand side of the

bed where the deceased slept. The evidence of the appellant in this regard was supported
by that of Captain Joubert. Secondly, we accept that there may be circumstances in which
a court may have regard to its own observations in respect of an exhibit before it. But save
in exceptional circumstances where the observation is clear for all to see (including an
appeal court), it should not be relied upon unless it was put to the relevant witnesses and/or
the accused person to afford them an opportunity to respond thereto. The far-reaching
observations of the trial court in respect of the photograph of the pillowcase were not put to
any witnesses or to the appellant and could by no means be said to be clear. The trial
court’s reliance on its own observations was wholly unjustified. In the third place, the
aforesaid evaluation of the expert evidence demonstrated that external airway obstruction
was not proved beyond reasonable doubt.

[84]  That the deceased did not hang herself, is also supported by the following factors.
It is not possible to find beyond reasonable doubt that the source of the ingested blood was
the lung contusions. Thus, it is reasonably possible that the ingested blood emanated from
nose bleeds. But this also must count against the appellant. According to the evidence the
deceased took good care of herself and of her appearance and was not a person to delay
things. It is not conceivable that she would not attend to two episodes of nose bleeds but
would rather swallow 200 to 250 millilitres of blood, unless she was somehow incapacitated.
That is an indication that she did not hang herself.

[85] Counsel for the appellant fairly conceded that there was no reason to doubt the
evidence of Mr Daniels in respect of the removal of the cord from the neck of the deceased.
He said that the cord had been loosely around her neck and that he easily removed it
without having to untie any knot. This too, points away from suicide by hanging. Finally, the
fingernail scratch marks that were related to the neck haemorrhages correspond with
strangulation by hand.

[86] For these reasons we are satisfied that the respondent proved beyond reasonable
doubt that the deceased was killed by manual strangulation and that only thereafter the
ligature was applied to her neck. It follows that the court a quo correctly convicted the
appellant on both counts.

[87] However, it must regrettably be said that save for the findings that the appellant
strangled the deceased and attempted to stage her suicide, the court a quo’s ‘vivid picture’
constituted speculation in respect of both content and sequence. There was no evidential
basis for the finding that the appellant had punched the deceased with his ring bearing fist.
We have already pointed out that it is reasonably possible that the deceased was not
smothered and that the right rib fractures were caused by attempted CPR. It will be recalled
that Mr Norton testified that the appellant had no injury on his hands shortly after the
incident and that Captain Joubert said that the minute quantities of the appellant’s blood
could have been deposited at any stage during his stay in the room. These matters need
mentioning because they impact on the question of an appropriate sentence, to which we
now turn.

Sentence
[88]  It will be recalled that the trial court sentenced the appellant to an effective term of
20 years’ imprisonment. The trial court, of course, sentenced the appellant on the basis of
its factual findings referred to above. In its judgment on sentence, the court a quo
accordingly said that the injuries that the appellant had inflicted on the deceased ‘were
successive and incremental’ until they were fatal. On the trial court’s findings, the appellant
executed a sustained assault on the deceased that included hitting her with his fist,
repeatedly smothering her and applying such force to her chest that she suffered rib
fractures and lung contusions.

[89] For the reasons already mentioned, these findings do not withstand scrutiny.
The appellant must be sentenced on count 1 on the basis that he unlawfully and
intentionally killed the deceased by manual strangulation but did not assault her in any other
way. It follows that this Court should consider sentence afresh.

[90] Section 51(2)(a) of the Criminal Law Amendment Act 105 of 1997 prescribes a
minimum sentence of 15 years’ imprisonment in respect of count 1, unless there are
substantial and compelling circumstances that justify a departure from the prescribed
sentence. In S v Malgas 2001 (1) SACR 469 (SCA), Marais JA said that courts should not
depart from the prescribed sentence lightly and for flimsy reasons which could not withstand

scrutiny. Substantial circumstances must compel a departure from the prescribed sentence
on the basis that it would be disproportionate in the circumstances of the case.

[91] The appellant’s personal circumstances are on record. He was 47 years of age at
the time of the commission of the offence. He has three adult daughters. He has been a
successful businessman and is capable of making a valuable contribution to society. He is
a first offender.

[92] However, the appellant committed a very serious crime. He murdered his wife in a
brutal and callous manner. The deceased’s death must be devastating to her daughters
and those who loved her. Regrettably violence against women and children has become a
pervasive phenomenon internationally and this country has in recent times seen gender-
based violence increase to intolerable and unacceptable proportions. The sentence of this
Court must reflect the abhorrence of society with regard to violence against women.
Furthermore, it is very important to bear in mind that the appellant is unrepentant and takes
no responsibility for his crimes.

[93] After due consideration of all the relevant facts and circumstances, we find no
substantial and compelling circumstances that justify a departure from the prescribed
sentence of 15 years’ imprisonment on count 1. In our view a sentence of three years’
imprisonment is appropriate in respect of count 2. In the light of the cumulative effect of the
sentences imposed, the sentence on count 2 should in terms of s 280(2) of the Criminal
Procedure Act 51 of 1977 be ordered to run concurrently with the sentence on count 1.
As the appellant served part of his sentence prior to his release on bail pending the appeal,
the sentences must in terms of s 282 of the Criminal Procedure Act be deemed to have
been imposed on 27 February 2019.

[94] In the result the following order is made:
1  The appeal against the convictions on counts 1 and 2 is dismissed.
2  The appeal against the sentences is upheld.
3  The order of the court a quo in respect of sentence is set aside and replaced with the
following:

‘(a)  On count 1 the accused is sentenced to 15 years’ imprisonment.
(c)  On count 2 the accused is sentenced to three years’ imprisonment.
(c)  The sentence on count 2 is ordered to run concurrently with the sentence on count 1.
(d)  The accused is declared unfit to possess a fire-arm.’
4  The abovementioned sentences are deemed to have been imposed on 27 February
2019.

_______________________
H SALDULKER
JUDGE OF APPEAL

_______________________
C H G VAN DER MERWE
JUDGE OF APPEAL

Appearances:

For appellant:

F van Zyl SC and W King SC
Instructed by:

Witz Inc Attorneys, Johannesburg

Michael du Plessis Attorneys, Bloemfontein

For respondent:

L J van Niekerk
Instructed by:
Director of Public Prosecutions: Western Cape, Cape
Town
Director of Public Prosecutions: Free State,
Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
5 October 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this
case and does not form part of the judgments of the Supreme Court of Appeal
Rohde v The State (815/2019) [2021] ZASCA 134 (5 October 2021)
The Supreme Court of Appeal (SCA) today dismissed an appeal against the
convictions and upheld an appeal against the sentences of the appellant, Mr Jason
Thomas Rohde.

On 8 November 2018, Mr Rohde was convicted in the Western Cape Division of the
High Court, Cape Town by Salie-Hlophe J (the trial court) on two counts; namely, the
murder of his wife, Ms Susan Francis Rohde, the deceased (count 1); and defeating
or obstructing the course of justice (count 2). Count 2 was based on the allegation that
subsequent to the murder of the deceased, the appellant had rearranged the scene of
the crime in an attempt to represent that the deceased had committed suicide. On 27
February 2019, the appellant was sentenced to an effective term of imprisonment of
20 years; that is, 18 years’ imprisonment on count 1 and five years’ imprisonment on
count 2, of which three years’ imprisonment were ordered to be served concurrently
with the sentence on count 1. The trial court refused the appellant’s application for
leave to appeal against the convictions and sentences, but the SCA subsequently
granted him such leave to appeal.

The facts of the matter were as follows. Over the weekend of Friday, 22 July 2016 to
Sunday, 24 July 2016, a well-known real estate company held its annual conference
at the Spier Hotel near Stellenbosch in the Western Cape. Mr Rohde, the chief
executive officer of the company, attended the conference. His wife, Ms Rohde,
accompanied him to the venue and attended the social events associated with the
conference. During the morning of 24 July 2016, however, Ms Rohde was found dead
in the bathroom of their suite at the hotel.

The issue at the heart of the appeal was whether the deceased died as a result of
smothering and/or manual strangulation, as the respondent alleged, or whether she
committed suicide by hanging herself from a hook affixed to the inside of the bathroom
door with the use of the cord of an electric hair curler, as was the appellant’s case.

The central question was whether the respondent proved beyond a reasonable doubt
that the deceased had been killed by the appellant, or whether there was a reasonable
possibility that she might have committed suicide.

The SCA found that the respondent had proved beyond reasonable doubt that the
deceased was killed by manual strangulation and that only thereafter the ligature was
applied to her neck. Thus, the trial court correctly convicted the appellant on both
counts.

However, the SCA found that the trial court erred in finding that the deceased had
been smothered. There were three reasons why this finding could not stand. The first
was that the trial court made a material factual error. The pillowcase that it examined
had been found on the right-hand side of the bed where the deceased slept. The
evidence of the appellant in this regard was supported by that of Captain Joubert.
Secondly, the far-reaching observations of the trial court in respect of the photograph
of the pillowcase were not put to any witnesses or to the appellant and could by no
means be said to be clear. The trial court’s reliance on its own observations was thus
wholly unjustified. In the third place, the aforesaid evaluation of the expert evidence
demonstrated that external airway obstruction was not proved beyond reasonable
doubt.

The SCA found further that it must regrettably be said that save for the findings that
the appellant strangled the deceased and attempted to stage her suicide, the court a
quo’s ‘vivid picture’ constituted speculation in respect of both content and sequence.
There was no evidential basis for the finding that the appellant had punched the
deceased with his ring bearing fist. Moreover, that it was reasonably possible that the
deceased was not smothered and that the right rib fractures were caused by attempted
cardiopulmonary resuscitation (CPR).

The SCA found that these matters impacted on the question of an appropriate
sentence. Accordingly, in respect of sentence the SCA held that the appellant must be
sentenced on count 1 on the basis that he unlawfully and intentionally killed the
deceased by manual strangulation, but did not assault her in any other way. The SCA
found after due consideration of all the relevant facts and circumstances, that no
substantial and compelling circumstances justified a departure from the prescribed
sentence of 15 years’ imprisonment on count 1. In addition, a sentence of three years’
imprisonment was appropriate in respect of count 2. The sentence on count 2 was
ordered to run concurrently with the sentence on count 1. The sentences were deemed
to have been imposed on 27 February 2019.
~~~~ends~~~~