THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 266/10

In the matter between:

M VAN DER WESTHUIZEN

Appellant

and

THE STATE

Respondent

Neutral citation: Van der Westhuizen v S (266/10) [2011] ZASCA 36

(28 March 2011).

Coram:
CLOETE, SNYDERS and THERON JJA

Heard:
23 FEBRUARY 2011

Delivered:
28 MARCH 2011

Summary:
Criminal Procedure: the requirement (in s 32 of the National
Prosecuting Authority Act) that a prosecutor must act impartially, explained;
held that an accused can waive the prohibition (contained in s 105A(10) of the
Criminal Procedure Act, 51 of 1977) on disclosure of plea-bargain
negotiations where no agreement is reached; held that where a special entry
in terms of s 317(1) of the Criminal Procedure Act is sought on the basis that
cross-examination of a State witness was unjustifiably curtailed, the court can
avoid making a special entry by recalling the witness for further cross-
examination; the effect of a formal admission made under s 220 of the
Criminal Procedure Act decided and the circumstances when such an
admission may be withdrawn, discussed. Sentence: Deterrence and
retribution do not recede into the background as purposes of sentencing
where an accused has not acted with substantial diminished responsibility.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Western Cape High Court (Cape Town) (Louw J sitting as
court of first instance):

The appeal is dismissed.
______________________________________________________________

JUDGMENT
______________________________________________________________

CLOETE JA (SNYDERS and THERON JJA  concurring):

Introduction
[1] On 28 July 2006 the appellant shot and killed his three children. He
was found guilty of three counts of murder by the Western Cape High Court
(Louw J) and sentenced to 14 years' imprisonment on each count. Nine years
of each of the sentences on the second and third counts was ordered to run
concurrently with the sentence on the first count. The effective term of
imprisonment was therefore 24 years. The appellant has appealed, with the
leave of the court a quo, against both his conviction and the sentence
imposed. This judgment addresses two questions:
(1)
whether the appellant had a fair trial; and
(2)
whether, having consented to admissions being recorded formally in
terms of s 220 of the Criminal Procedure Act (the CPA),1 the appellant was
entitled, without more, to lead evidence and advance argument in
contradiction of such admissions.

Fair trial
[2] The submission that the appellant had not been accorded a fair trial
was based on an argument that the prosecutor had not been impartial, and on
specific instances of alleged misconduct on the part of the prosecutor and the
court.

1 51 of 1977.

Impartiality of the prosecutor
[3] I shall deal first with the impartiality of the prosecutor. The appellant's
attorney submitted:
(a)
that the prosecutor had called Inspector Koekemoer, a sniper and part
of the special task force deployed at the appellant's house after he had shot
his children, to give evidence prejudicial to the appellant when the prosecutor
could have called the hostage negotiators, especially the senior negotiator
Superintendent Herman Bosman, whose evidence, it was submitted, would
have been less prejudicial to the appellant and important for the court to
appreciate the appellant's mental state; and
(b)
that the prosecutor had not called:
(i)
Ronel Arendse, the psychologist to whom Mrs van der Westhuizen had
been referred on the date of the shootings, who was still treating her when
she gave evidence and whose summary of what was told to her allegedly
differed from Mrs van der Westhuizen's evidence as to what had happened on
the night of the shootings;
(ii)
Tanya Swart (a psychologist at Valkenberg and part of the team that
observed the appellant when he was referred there for an inquiry into his
mental state and a report as contemplated in chapter 13 of the CPA) whose
notes contained material which the defence considered to be of assistance to
the appellant, which were used to cross-examine State witnesses and which
were handed in as an exhibit by the defence;
(iii)
Ronel Kemp (née Ollewagen), a psychologist consulted by the
appellant and Mrs van der Westhuizen in 2004; and
(vi)
Captain Marinda van Zyl, a social worker from the Employee
Assistance Services of the police, whom both the appellant and Mrs van der
Westhuizen consulted during the year in which the shootings took place.

[4] The appellant's attorney asked this court to draw the inference that
witnesses that could support the appellant's case, were not called; and that
the State had gone out of its way to obtain and place before the court
evidence that showed the appellant in a bad light. At the heart of this
argument is a fundamental misconception of the duties and function of a
prosecutor in a criminal case.

[5] Section 179(4) of the Constitution2 provides that:
'National legislation must ensure that the prosecuting authority exercises its functions
without fear, favour or prejudice.'
The national legislation concerned, is the National Prosecuting Authority Act.3
Two sections of that Act are relevant for present purposes, namely s 32 and
s 22(6). The former section provides:
'(1)(a) A member of the prosecuting authority shall serve impartially and exercise,
carry out or perform his or her powers, duties and functions in good faith and without
fear, favour or prejudice and subject only to the Constitution and the law.'
The oath and affirmation prescribed in subsec (2)(a) of the same section also
contain the words 'enforce the Law of the Republic without fear, favour or
prejudice'. Section 22(6) of the National Prosecuting Authority Act requires the
National Director of Public Prosecutions (in consultation with the Minister and
after consultation with Deputy National Directors and Directors) to frame a
code of conduct, and provides that such code shall be complied with by the
prosecuting authority.4

[6] The Code of Conduct for Members of the National Prosecuting
Authority was recently published by GN R1257 in GG 33907 of 29 December
2010. It contains the following provisions relevant for present purposes:
'B.
INDEPENDENCE
The prosecutorial discretion to institute and to stop criminal proceedings should be
exercised independently, in accordance with the Prosecution Policy and the Policy
Directives, and be free from political, public and judicial interference.
C.
IMPARTIALITY
Prosecutors should perform their duties without fear, favour or prejudice. In
particular, they should ─
(a)
carry out their functions impartially and not become personally, as opposed to
professionally, involved in any matter;
(b)
avoid taking decisions or involving themselves in matters where a conflict of
interest exists or might possibly exist;

2 Constitution of the Republic of South Africa, 1996.
3 32 of 1998.
4 Which, in terms of s 4 of the Act, comprises the National Director, Deputy National Directors,
Directors, Deputy Directors and prosecutors.

(c)
take into consideration the public interest as distinct from media or partisan
interests and concerns, however vociferously these may be presented;
(d)
avoid participation in political or other activities which may prejudice or be
perceived to prejudice their independence and impartiality;
(e)
not seek or receive gifts, donations, favours or sponsorships that may
compromise, or may be perceived to compromise, their professional integrity;
(f)
act with objectivity and pay due attention to the constitutional right to equality;
(g)
take into account all relevant circumstances and ensure that reasonable
enquiries are made about evidence, irrespective of whether these enquiries are to
the advantage or disadvantage of the alleged offender;
(h)
be sensitive to the needs of victims and do justice between the victim, the
accused and the community, according to the law and the dictates of fairness and
equity; and
(i)
assist the court to arrive at a just verdict and, in the event of a conviction, an
appropriate sentence based on the evidence presented.'

[7] The Code was not in operation at the time of the appellant's
prosecution but it is consistent with the United Nations Guidelines on the Role
of Prosecutors5 as well as the Standards of Professional Responsibility and
Statements of the Essential Duties and Rights of Prosecutors of the
International Association of Prosecutors.6 Clause 13 of the UN Guidelines
provides:
'In the performance of their duties, prosecutors shall:
(a)
Carry out their functions impartially and avoid all political, social, religious,
racial, cultural, sexual or any other kind of discrimination;
(b)
Protect the public interest, act with objectivity, take proper account of the
position of the suspect and the victim, and pay attention to all relevant
circumstances, irrespective of whether they are to the advantage of the suspect.'

[8] The International Association of Prosecutors' Standards contains the
following provisions relevant for present purposes:
'3.
Impartiality
Prosecutors shall perform their duties without fear, favour or prejudice.

5 Adopted by the 8th United Nations Congress on the Prevention of Crime and the Treatment
of Offenders, in Havana, 27 August to 7 September 1990.
6 Adopted in Amsterdam in April 1999.

In particular they shall:
carry out their functions impartially;
remain unaffected by individual or sectional interests and public or media pressures
and shall have regard only to the public interest; act with objectivity;
have regard to all relevant circumstances, irrespective of whether they are to the
advantage or disadvantage of the suspect;
in accordance with local law or the requirements of a fair trial, seek to ensure that all
necessary and reasonable enquiries are made and the result disclosed, whether that
points towards the guilt or the innocence of the suspect;
always search for the truth and assist the court to arrive at the truth and to do justice
between the community, the victim and the accused according to law and the
dictates of fairness.
4.
Role in criminal proceedings
4.1
Prosecutors shall perform their duties fairly, consistently and expeditiously.
. . .
(d)
in the institution of criminal proceedings, they will proceed only when a case
is well-founded upon evidence reasonably believed to be reliable and admissible,
and will not continue with a prosecution in the absence of such evidence; throughout
the course of the proceedings, the case will be firmly but fairly prosecuted; and not
beyond what is indicated by the evidence.'

[9] I pause to emphasise that the concept of impartiality in the South
African code, the UN Guidelines and the Standards of the International
Association of Prosecutors is not used in the sense of not acting adverserially,
but in the sense of acting even-handedly, ie avoiding discrimination; and the
duty to act impartially is therefore part of the more general duty to act without
fear, favour or prejudice.

[10] Against this local and international background, it would be apposite to
quote from the judgment of Rand J of the Supreme Court of Canada in
Boucher v The Queen:7
'It cannot be over-emphasized that the purpose of a criminal prosecution is not to
obtain a conviction, it is to lay before a jury what the Crown considers to be credible
evidence relevant to what is alleged to be a crime. Counsel have a duty to see that

7 Boucher v The Queen [1955] SCR 16 at 23-4.

all available legal proof of the facts is presented: it should be done firmly and pressed
to its legitimate strength but it must also be done fairly. The role of prosecutor
excludes any notion "of winning or losing"; his function is a matter of public duty than
which in civil life there can be none charged with greater personal responsibility. It is
to be efficiently performed with an ingrained sense of the dignity, the seriousness and
the justness of judicial proceedings.'
The passage has been repeatedly referred to by that court in subsequent
decisions, see eg Nelles v Ontario,8 CanadianOxy Chemicals Ltd v Canada
(Attorney General),9 R v Stinchcombe,10 Proulx v The Queen;11 and it has
been quoted with approval by our Constitutional Court in S v Shaik & others,12
by the House of Lords and the Judicial Committee of the Privy Council in R v
H,13 Randall v The Queen,14 Benedetto v The Queen; Labrador v The
Queen,15 by the High Court of Australia in Libke v R16 and by the Supreme
Court of Ireland in D O v DPP.17

[11] The initial remarks of Rand J in Boucher in the passage quoted above
must not, however, be misunderstood. In our practice it is not the function of a
prosecutor disinterestedly to place a hotchpotch of contradictory evidence
before a court and then leave the court to make of it what it wills. On the
contrary, it is the obligation of a prosecutor firmly but fairly and dispassionately
to construct and present a case from what appears to be credible evidence,
and to challenge the evidence of the accused and other defence witnesses
with a view to discrediting such evidence, for the very purpose of obtaining a
conviction.18 That is the essence of a prosecutor's function in an adversarial
system and it is not peculiar to South Africa:

8 Nelles v Ontario [1989] 2 SCR 170.
9 CanadianOxy Chemicals Ltd v Canada (Attorney General) [1999] 1 SCR 743 para 25.
10 R v Stinchcombe [1991] 3 SCR 326 p 10.
11 Proulx v The Queen 2001 SCC 66, [2001] 3 SCR 9 para 41.
12 S v Shaik & others [2007] ZACC 19, 2008 (1) SA 1 (CC) para 67.
13 R v H [2004] UKHL 3, [2004] 2 AC 134, [2004] 1 All ER 1269 (HL) para 13.
14 Randall v The Queen [2002] UKPC 19, [2002] 1 WLR 2237 (PC) para 10.
15 Benedetto v The Queen; Labrador v The Queen [2003] UKPC 27, [2003] 1 WLR 1545 (PC)
para 54.
16 Libke v R [2007] HCA 30; (2007) 235 ALR 517 para 71.
17 D O v DPP [2006] IESC 12.
18 The South African Code for Members of the National Prosecuting Authority makes it clear
in para D1(e) that 'throughout the course of the proceedings the case should be firmly but
fairly and objectively prosecuted'.

(a)
Lord Bingham said in Randall:19
'Fairness
A contested criminal trial on indictment is adversarial in character. The prosecution
seeks to satisfy the jury of the guilt of the accused beyond reasonable doubt. The
defence seeks to resist and rebut such proof. The objects of the parties are
fundamentally opposed. . . .
. . . The adversarial format of the criminal trial is indeed directed to ensuring a
fair opportunity for the prosecution to establish guilt and a fair opportunity for the
defendant to advance his defence. . . .
(I)
The duty of prosecuting counsel is not to obtain a conviction at all costs but to
act as a minister of justice: R v Puddick (1865) 4 F & F 497, 499; R v Banks [1916] 2
KB 621, 623. The prosecutor's role was very clearly described by Rand J in the
Supreme Court of Canada. . . .'
and the learned Law Lord then went on to quote the remarks of Rand J in
Boucher set out above.
(b)
Justice Sutherland said in Berger v US:20
'The United States Attorney is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice shall be done. As
such, he is in a peculiar and very definite sense the servant of the law, the twofold
aim of which is that guilt shall not escape or innocence suffer. He may prosecute with
earnestness and vigour ─ indeed, he should do so. But, while he may strike hard
blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one.'
(c)
Madame Justice L'Heurex-Dubé said in R v Cook:21
'Nevertheless, while it is without question that the Crown performs a special function
in ensuring that justice is served and cannot adopt a purely adversarial role towards
the defence (Boucher v The Queen, [1955] SCR 16; Power, supra, at p 616), it is well
recognized that the adversarial process is an important part of our judicial system
and an accepted tool in our search for the truth: see, for example R v Gruenke,
[1991] 3 SCR 263, at p 295, per L'Heureux-Dubé J. Nor should it be assumed that

19 Above, n 14 paras 9 and 10.
20 Berger v US (1935) 295 US 78 at 88.
21 R v Cook [1997] 1 SCR 113, (1997) 114 CCC (3d) 481 (SCC) para 21.

the Crown cannot act as a strong advocate within this adversarial process. In that
regard, it is both permissible and desirable that it vigorously pursue a legitimate result
to the best of its ability. Indeed, this is a critical element of this country's criminal law
mechanism: R v Bain, [1992] 1 SCR 91; R v Jones, [1994] 2 SCR 229; Boucher,
supra. In this sense, within the boundaries outlined above, the Crown must be
allowed to perform the function with which it has been entrusted; discretion in
pursuing justice remains an important part of that function.' (Underlining in the
original judgment.)

[12] Where an accused is represented, it is not the function of a prosecutor,
as suggested by the appellant's attorney, to call evidence which is destructive
of the State case or which advances the case of the accused.22 The
prosecutor is not obliged to play chess against him ─ or herself. In England,
the Privy Council in the case of Seneviratne v R23 allowed the accused's
appeal on a narrow ground not relevant for present purposes, but rejected the
accused's more general submission that the Crown had an obligation to call
every eyewitness to the crime by saying:24
'Their Lordships do not desire to lay down any rules to fetter discretion on a matter
such as this which is so dependent on the particular circumstances of each case. Still
less do they desire to discourage the utmost candour and fairness on the part of
those conducting prosecutions; but at the same time they cannot, speaking generally,
approve of an idea that a prosecution must call witnesses irrespective of
considerations of number and of reliability, or that a prosecution ought to discharge
the functions both of prosecution and defence. If it does so confusion is very apt to
result, and never is it more likely to result than if the prosecution calls witnesses and
then proceeds almost automatically to discredit them by cross-examination.
Witnesses essential to the unfolding of the narratives on which the prosecution is
based, must, of course, be called by the prosecution, whether in the result the effect
of their testimony is for or against the case for the prosecution.' (Emphasis added.)
Madame Justice L'Heurex-Dubé in R v Cook,25  having quoted this passage,
with the emphasis added, continued:

22 It has been held in Zimbabwe that the converse is the case where an accused is not
represented: Smith v Ushewokunze & another 1998 (3) SA 1125 (ZSC) at 1130J-1131H;
1997 (2) ZLR 544; 1998 (2) BCLR 170.
23 Seneviratne v R [1936] 3 All ER 36.
24 At pp 48-49.
25 Above, n 21 para 25.

'This obiter ruling, apparently intended to clarify the existing law in this area, did not
quite accomplish its desired task. Instead, it would seem to have heightened the level
of confusion. It was primarily the combined effect of the two portions highlighted
above which has given rise to the most concern. At first, the Privy Council appears to
be approving of a broad discretion and a reluctance to impose a need for the Crown
to call witnesses for both sides. In the second portion, however, it would seem that
the Court is indicating that certain witnesses, those "essential to the … narrative",
must be called in every case. On the surface at least, these opposing comments are
not easily reconcilable.'
The learned justice then referred to the Privy Council case of Adel
Muhammed El Dabbah v Attorney-General for Palestine26 and Canadian
cases including Lemay v The King27 and R v Yebes.28 In the Yebes matter
McIntire J said:29
'The Crown has a discretion as to which witnesses it will call in presenting its case to
the court. This discretion will not be interfered with unless the Crown has exercised it
for some oblique or improper reason: see Lemay v The King, supra. No such
improper motive is alleged here. While the Crown may not be required to call a given
witness, the failure of the Crown to call a witness may leave a gap in the Crown's
case which will leave the Crown's burden of proof undischarged and entitle the
accused to an acquittal. It is in this sense that the Crown may be expected to call all
witnesses essential to the unfolding of the narrative of events upon which the
Crown's case is based.'
In Cook30 Madam Justice L'Heureux-Dubé said of this passage, referring back
to the second passage emphasised in Seneviratne:
'"[E]ssential to the . . . narrative" does not mean, as many have attempted to suggest,
that all witnesses with relevant testimony have to be called by the prosecution. On
the contrary, it refers solely to the Crown's burden of proof in a criminal proceeding.
Where the "narrative" of a given criminal act is not adequately set forth, elements of
the offence might not be properly proven, and the Crown risks losing its case.'

[13] It is therefore within the discretion of the prosecutor to decide which
witnesses to call as part of the State case. The duty of the prosecutor 'to see

26 Adel Muhammed El Dabbah v Attorney-General for Palestine [1944] AC 156.
27 Lemay v The King [1952] 1 SCR 232.
28 R v Yebes [1987] 2 SCR 168.
29 Para 28.
30 Above, n 21 para 31.

that all available legal proof of the facts is presented', in the words of Rand J
in Boucher, is discharged by making the evidence (and not only the witnesses
subpoenaed by the State) available to the accused's legal representatives.
The South African Code of Conduct for Members of the National Prosecuting
Authority provides in chapter D, which deals with 'Role in Administration of
Justice':
'2.
Prosecutors should, furthermore ─
. . .
(g)
as soon as is reasonably possible, disclose to the accused person relevant
prejudicial and beneficial information, in accordance with the law or the requirements
of a fair trial.'
I respectfully agree in this regard with the remarks of Justice Sopinka who
delivered the judgment of the Supreme Court of Canada in Stinchcombe:31
'As long ago as 1951, Cartwright J stated in Lemay v The King, [1952] 1 SCR 232, at
p 257:
"I wish to make it perfectly clear that I do not intend to say anything which might be
regarded as lessening the duty which rests upon counsel for the Crown to bring
forward evidence of every material fact known to the prosecution whether favourable
to the accused or otherwise. . . ."
This statement may have been in reference to the obligation resting on counsel for
the Crown to call evidence rather than to disclose the material to the defence, but I
see no reason why this obligation should not be discharged by disclosing the material
to the defence rather than obliging the Crown to make it part of the Crown's case.'
(Emphasis by Sopinka J.)32
I would emphasise, however, that it is not necessarily sufficient for the
prosecutor to tender State witnesses to the defence at the end of the State
case, nor does the prosecutor necessarily discharge the duty of disclosure by
making available the contents of the dossier: if there is evidence which the
prosecutor knows or ought reasonably to suspect is or may be destructive of
the State case, or which tends or might tend to support the defence case, and
which the prosecutor knows or ought reasonably to suspect is not known to
the defence, it is the prosecutor's duty to bring this evidence specifically to the
attention of the accused's legal representatives. It would therefore, for

31 Above, n 10 p 15.
32 This passage was approved in Cook above, n 21 para 36.

example, not be necessary for a prosecutor to draw attention to a specific
witness's statement favourable to the accused in the dossier made available
to the defence, for he who runs may read; but the prosecutor would be
obliged to inform the defence that a particular witness, who has not given a
statement, might to the defence's advantage be consulted and why, and also
to assist, where necessary, in making such a witness available; and the
prosecutor would also be obliged to furnish the defence with a document
which is not in the dossier, which favours the accused's case or which is
destructive of the State case, which the prosecutor believes or ought
reasonably to believe is not in the possession of the defence. But the
prosecutor's obligation is not to put the information before the court.

[14] I therefore conclude that there is no substance in the argument that the
appellant did not receive a fair trial because the State called some witnesses,
and not others. Nor did the prosecutor simply make State witnesses not called
by the State available to the defence: the prosecutor placed on record that he
would assist the defence in locating and consulting with such witnesses. And
if the appellant's attorney did not insist that subpoenas issued at the suit of the
defence were enforced, that cannot be laid at the door of the prosecution.

[15] I turn to consider the specific complaints made by the appellant's
attorney in support of the argument that the appellant did not receive a fair
trial. For reasons which will become apparent, it is not necessary to deal with
all of them.

Section 105A of the CPA
[16] Plea negotiations as contemplated in s 105A of the CPA took place
between the State and the appellant's legal representatives. Nothing came of
these negotiations but in the course of them the appellant's legal
representatives furnished the prosecution with reports on the appellant
authored by a psychiatrist, Dr Neil Fouché, and a psychologist, Mrs Charlotte
Hoffman. Those reports were sent by the prosecution to Dr Killisky (a member
of the team at Valkenberg Hospital which inquired into, and reported on, the
appellant's mental state in terms of chapter 13 of the CPA) and were seen by

Dr Panieri-Peter (a member of the same team) about two days before she
was due to give evidence. She had regard to them and intended referring to
them in her evidence. The appellant's attorney submitted that this constituted
an irregularity inasmuch as s 105A(10)(a)(i) provides:
'Where a trial starts de novo as contemplated in subsec (6)(c)33 or (9)(d)34 ─
(a)
the agreement shall be null and void and no regard shall be had or reference
made to ─
(i)
any negotiations which preceded the entering into the agreement.'
The section contains no reference to a situation such as the present where
there was no agreement, but it must apply equally in such a case. Normally,
an accused cannot consent to an incorrect procedure being followed: S v
Lapping;35 but the section contains a proviso in the following terms:
'Unless the accused consents to the recording of all or certain admissions made by
him or her in the agreement or during any proceedings relating thereto and any
admissions so recorded shall stand as proof of such admission.'
The effect of the proviso is that an accused may waive the protection afforded
by the section and agree to the recording of admissions. A fortiori, then, can
an accused agree to the use of documents brought into existence for the
purposes of s 105A proceedings which do not contain admissions, but which
are unfavourable or, for that matter, favourable to the accused. And that is
exactly what happened here.

[17] After Dr Panieri-Peter had read her report into the record, the
appellant's attorney pointed out that the reports of the appellant's experts sent
to the prosecution as part of the s 105A proceedings, had come into her
hands. The court then adjourned for the day. The following morning at the
commencement of proceedings the appellant's attorney said:
'Edele, dit is nog steeds my submissie dat die verslae was ingehandig in Artikel 105A
verrigtinge, en dat dit bespreek was in daardie omstandighede. Ek gaan egter, of ek
was gister geskok gewees dat hierdie getuie dit genoem het, dat hierdie verslae

33 'If the court has recorded a plea of not guilty, the trial shall start de novo before another
presiding officer: Provided that the accused may waive his or her right to be tried before
another presiding officer.'
34 'If the prosecutor or the accused withdraws from the agreement as contemplated in
paragraph (b)(ii), the trial shall start de novo before another presiding officer: Provided that
the accused may waive his or her right to be tried before another presiding officer.'
35 S v Lapping 1998 (1) SACR 409 (W) and cases cited at 411g-412h.

oorhandig aan haar was. Ek het dit egter met die Staat bespreek, die Staat het my 'n
verduideliking daaroor gegee. Ek gaan nie beswaar maak dat sy dan getuienis
daaroor gee nie. Indien daar enige aspekte is wat ek voel wat verkeerdelik genoem
word, of 'n verkeerde afleiding uit daardie verslae, dan sal ek dit laat uitblyk in
kruisondervraging.'
After further discussions the court, addressing the prosecutor, said that the
appellant's attorney did not object to Dr Panieri-Peter continuing with her
evidence, obviously by dealing with the appellant's expert reports, but that he
(the appellant's attorney) would deal with that evidence in cross-examination.
The prosecutor confirmed that that was so. The learned judge then asked the
appellant's attorney whether the position as had just been explained, was
correct, and the appellant's attorney confirmed that it was. Dr Panieri-Peter
continued with her evidence but before dealing with the reports from the
defence, said:
'I have deliberately left out the inconsistencies in this Psychologist and the
Psychiatrist reports about memory. I don't know, can I comment on those, because
that is also relevant to the inconsistency of memory, but I just want to be clear,
because there was a dispute about documents. I want to be clear on that information
first.'
The judge then addressed the appellant's attorney and enquired: 'Ek wil net
seker maak wat u houding is daaromtrent.' The appellant's attorney asked for
an opportunity to take instructions, to which the judge responded:
'Ja, maar u moet nou besluit, meneer, watter kant toe u wil gaan daarmee, want ek
verstaan u het dit oorweeg om te sê u het nie 'n beswaar as daar na verwys word
nie, want u gaan in elk geval daarmee handel in kruisverhoor. Nou kom dit nou by die
punt, en volgens die getuie is daar belangrike inligting daarin, feitlike weergawes wat
vir haar van belang is om 'n mening uit te spreek.'
The court then adjourned at the request of the appellant's attorney and on
resumption, the latter said:
'Dit is my instruksies om nie beswaar te maak teen die getuienis wat gelei word nie,
maar versoek spesifiek dat daar spesifieke verwysing gemaak sal word na 'n
persoon se verslag . . . . dat die verslae nie in een bespreek word, hetsy van
Charlotte Hoffman of van Niel Fouché nie, maar indien sy dan net 'n verwysing sal
maak van 'n spesifieke verslag, na wat verwys word.'

[18] In the circumstances, the proposition that the appellant did not have a
fair trial because reports handed to the State in the course of s 105A
proceedings had come into the hands of a State witness and were
commented on by the State witness, is untenable. The attitude of the
appellant's attorney as reflected in the exchanges summarised above was
eminently sensible if the defence intended to call the witnesses whose reports
had been handed to the prosecution. It would have been the duty of the
appellant's attorney to put the contents of the reports to State witnesses who
could comment thereon and that included Dr Panieri-Peter. Allowing the State
to lead such comments in her evidence in chief had the advantage that the
defence could consult its expert witnesses after her comments were known,
and then put the reply of the defence witnesses to her criticism of their reports
in cross-examination, so obviating the necessity for an adjournment during
cross-examination to enable the defence to take instructions.

Special entries
[19] The next complaint advanced by the appellant's attorney was that his
cross-examination of Mrs van der Westhuizen had been unjustifiably limited
by the court a quo, and that the court had refused to make a special entry in
terms of s 31736 of the CPA in this regard. It is convenient to consider this
point together with the further complaint by the appellant's attorney that a
statement by Ms Ronel Arendse was not timeously disclosed to the defence
and that the court refused to make a special entry in this regard as well.

[20] As I have said, Ms Ronel Arendse is a psychologist, to whom Mrs van
der Westhuizen was referred on the date of the incident and who was still

36 Section 317(1) of the CPA provides:
'If an accused is of the view that any of the proceedings in connection with or during his or her
trial before a High Court are irregular or not according to law, he or she may, either during his
or her trial or within a period of 14 days after his or her conviction or within such extended
period as may upon application (in this section referred to as an application for condonation)
on good cause be allowed, apply for a special entry to be made on the record (in this section
referred to as an application for a special entry) stating in what respect the proceedings are
alleged to be irregular or not according to law, and such a special entry shall, upon such
application for a special entry, be made unless the court to which or the judge to whom the
application for a special entry is made is of the opinion that the application is not made bona
fide or that it is frivolous or absurd or that the granting of the application would be an abuse of
the process of the court.'

treating her when Mrs van der Westhuizen gave evidence. These facts
emerged during cross-examination of Mrs van der Westhuizen on Thursday 6
November 2008. After the court had adjourned, the prosecutor looked at a
report from Ms Arendse, saw that it referred to other reports, obtained those
reports from her and forwarded same to the appellant's attorney because they
contained references to what had happened during the night of the shootings.
The reports were received by the appellant's attorney during the afternoon of
Friday 7 November 2008. The following Monday, 10 November 2008, the
appellant's attorney asked for a special entry to be made in terms of s 317
because the defence had not had an opportunity to cross-examine Mrs van
der Westhuizen on the alleged differences between the report and Mrs van
der Westhuizen's evidence on the events of the night in question. The
prosecutor suggested that Mrs van der Westhuizen be recalled for such
cross-examination.

[21] The appellant's attorney had by then indicated to the court that he
would apply for a special entry also on the basis that he had been prevented
from properly cross-examining Mrs van der Westhuizen. The court indicated
that Mrs van der Westhuizen would be recalled for further cross-examination
and instructed the appellant's attorney to cover both aspects ─ the alleged
differences between Ms Arendse's report and Mrs van der Westhuizen's
evidence, as well as any other aspects he wished to canvass with Mrs van der
Westhuizen which would have given rise to a special entry. The further cross-
examination of Mrs van der Westhuizen stood over for three days at the
request of the appellant's attorney to enable him to prepare and other
witnesses were called by the State in the meantime. Before the cross-
examination commenced, the presiding judge again instructed the appellant's
attorney to cross-examine Mrs van der Westhuizen on aspects that the latter
claimed he had been prevented from putting to her, in order to avoid a special
entry and it is clear from the record that the appellant's attorney understood
the court's attitude.

[22] The appellant's attorney then cross-examined Mrs van der Westhuizen
until after the tea adjournment and said to the court:

'U Edele, dit sluit my kruisondervraging af.'
The learned judge then said:
'Nou soos ek vroeër gesê het u het aangedui dat u wil aansoek doen vir spesiale
inskrywing dat wat die kruisverhoor van hierdie getuie betref daar onreëlmatigheid
was of dat die prosedure in stryd met die reg is. Nou die getuie is nou hier in die
getuiebank. Is daar enige ander aspekte wat u met die getuie wil opvat? Wat u
vroeër oënskynlik onder die indruk was dat u nie toegelaat is om behoorlik te
kruisverhoor nie.  Onreëlmatig nie toegelaat is nie. Of in stryd met die reg nie
toegelaat is om volledig te kruisverhoor.'
The appellant's attorney began replying, and was interrupted by the court who
said:
'Ja, maar nou wat is nou die posisie? Is daar nog aspekte wat u meen u nie op 'n
onreëlmatige wyse of strydig met die reg nie toegelaat is om te kruisverhoor nie?'
The appellant's attorney replied:
'U Edele ek sal dit daar laat. My instruksies [is] om dit nie verder te kruisondervra.'
The court then said:
'Verstaan ek u dan dat u het die geleentheid gehad om ten volle, soos u dit sien, te
kruisverhoor?'
A further discussion ensued and the court then said:
'Kyk, ek verstaan u het instruksies, maar u is die regsverteenwoordiger. U moet 'n
besluit neem.'
Again, the court made its attitude clear:
'Want ek wil nie later laat ons sit met 'n situasie dat daar 'n aansoek vir 'n spesiale
aantekening is dat daar nie behoorlik gekruisverhoor is nie of dat die kruisverhoor
onreëlmatig of in stryd met die reg gekortwiek is nie. So as daar is dan moet u dit vir
my noem dat ek ─ dan kan u vir my toespreek oor die relevansie daarvan en dan kan
daar 'n besluit geneem word. Maar ek kan dit nie in die lug laat hang nie meneer.
Verstaan u?'
It appears from the record that the appellant's attorney then had discussions
with the prosecutor and Mrs van der Westhuizen was cross-examined further,
in camera. Thereafter the appellant's attorney again said that his cross-
examination was concluded.

[23] It is unnecessary to consider whether, initially, the court unjustifiably
limited cross-examination of Mrs van der Westhuizen. Any irregularity that

there may have been in that regard was cured by the court allowing further
cross-examination. The same applies to the complaint that the report of Ms
Arendse was made available only after Mrs van der Westhuizen had already
given evidence. The submission on appeal that the procedure followed by the
court was irregular and that the court was obliged to make the special entries,
is devoid of authority, logic and merit.

Bias of the judge
[24] The appellant's attorney accused the trial judge of bias towards the
appellant. He did not wish to answer the question from the bench whether he
relied on actual bias or on facts that could reasonably give rise to an inference
of bias but, when pressed, he alleged actual bias. I do not propose dignifying
this allegation by analyzing the submissions made in support of it. It is entirely
without merit and the best proof of this is the fact that, as the appellant's
attorney confirmed, no application was made at any time, in court or in
chambers, for the judge a quo to recuse himself.

[25] Further arguments by the appellant's attorney in support of the
submission that the appellant did not receive a fair trial that were contained in
the heads of argument, were either abandoned in argument before us37 or
require no serious consideration.

[26] I therefore conclude that there is no substance in the submission that
the appellant did not receive a fair trial. I turn to consider the effect of the
formal admissions made by the appellant.

Section 220 admissions
[27] At the commencement of the trial, the appellant pleaded guilty to each
of the three murder charges. He was then represented by an advocate and
his present attorney. A written statement setting out the facts on which he
pleaded guilty and signed by himself, his advocate and his attorney was read
out in full by his advocate and handed in as exhibit A. The appellant, in

37 Those in regard to the calling of Koekemoer and Joubert and the non-production or late
production of documents by the State.

response to a question by the court, thereupon confirmed that exhibit A
contained his plea and explanation of his plea. The following paragraphs of
that document are relevant for present purposes:
'Ad Aanklag 1
4.1
Ek erken dat ek op 28 Julie 2006 en naby Kingstraat 8, Brackenfell vir Bianca
van der Westhuizen, 'n vroulike persoon, gedood het deur haar een maal met 'n
vuurwapen, te wete 'n Z88 pistool, in die kop te skiet.
Ek erken dat ek geweet het toe ek so opgetree het dat ek verkeerd optree en
dat ek daarvoor gestraf kan word.
4.2
Ek erken voorts dat die oorsaak van dood "'n skoot aan die kop is" soos
vervat in die regsgeneeskundige lykskouingsverslag van Jacob Johannes Dempers.
4.3
Ek erken voorts dat die oorledene geen verdere beserings opgedoen het na
die toedien van die noodlottige skoot tot die uitvoering van die regsgeneeskundige
lykskouing.
4.4
Vir doeleindes van volledigheid erken ek ook dat die identiteit van die
oorledene Bianca van der Westhuizen was.
5.
Ad Aanklag 2
5.1
Ek erken dat ek op 28 Julie 2006 en naby Kingstraat 8, Brackenfell vir Marius
Eben van der Westhuizen, 'n manlike persoon, gedood het deur hom een maal met
'n vuurwapen, te wete 'n Z88 pistool, in die kop te skiet.

Ek erken dat ek geweet het toe ek so opgetree het dat ek verkeerd optree en
dat ek daarvoor gestraf kan word.
5.2
Ek erken voorts dat die oorsaak van dood "'n skoot aan die kop is" soos
vervat in die regsgeneeskundige lykskouingsverslag van Jacob Johannes Dempers.
5.3
Ek erken voorts dat die oorledene geen verdere beserings opgedoen het na
die toedien van die noodlottige skoot tot die uitvoering van die regsgeneeskundige
lykskouing.
5.4
Vir doeleindes van volledigheid erken ek ook dat die identiteit van die
oorledene Marius Eben van der Westhuizen was.
6.
Ad Aanklag 6
6.1
Ek erken dat ek op 28 Julie 2006 en naby Kingstraat 8, Brackenfell vir
Antoinette van der Westhuizen, 'n vroulike persoon, gedood het deur haar een maal
met 'n vuurwapen, te wete 'n Z88 pistool, in die kop te skiet.

Ek erken dat ek geweet het toe ek so opgetree het dat ek verkeerd optree en
dat ek daarvoor gestraf kan word.

6.2
Ek erken voorts dat die oorsaak van dood "'n skoot aan die kop is" soos
vervat in die regsgeneeskundige lykskouingsverslag van Jacob Johannes Dempers.
6.3
Ek erken voorts dat die oorledene geen verdere beserings opgedoen het na
die toedien van die noodlottige skoot tot die uitvoering van die regsgeneeskundige
lykskouing.
6.4
Vir doeleindes van volledigheid erken ek ook dat die identiteit van die
oorledene Antoinette van der Westhuizen was.
7.
Nieteenstaande die feit dat ek voor en ten tye van die voorval aan erge
depressie gely het en nieteenstaande die feit dat ek geen geheue het oor die
betrokke voorval, welke geheueverlies toegeskryf word aan post traumatiese
spanning (stress) disfunksie:
7.1
Erken ek die feite soos uiteengesit in die klagstaat;
7.2
Erken ek dat alhoewel my insig beperk was deur die depressie, ek
nieteenstaande die beperkte insig, die verkeerdheid van my handelinge besef het;
7.3
Erken
ek
spesifiek
dat
die
depressie
en/of
geheueverlies
geen
regverdigingsgrond daarstel nie maar slegs verminderde toerekeningsvatbaarheid
daar mag stel;
7.4
Erken dat die geheueverlies toegeskryf word aan post traumatiese spannings
disfunksie en dat dit nie 'n verweer daarstel soos uiteengesit in Artikel 77 en 78 van
die Strafproseswet;
7.5
Ek erken dat my depressie en geheueverlies vanweë post traumatiese
spannings disfunksie volledig met my bespreek is deur my regsverteenwoordigers,
sielkundige en psigiater, dat ek die omvang daarvan begryp en weereens erken ek
onomwonde dat dit nie 'n verweer daarstel en dat ek erken dat my optrede verkeerd
was en dat ek die nodige insig gehad het.
8.
Gevolglik erken ek dat ek die nodige vermoë gehad het om tussen reg en
verkeerd te onderskei en voorts dat ek die vermoë gehad het om ooreenkomstig
daardie onderskeidingsvermoë te handel.'

[28] The prosecutor placed on record that the State did not accept the
allegations in para 7 of exhibit A. For the rest, the admissions were accepted.
The learned judge a quo noted that there was no admission that the
appellant's conduct was accompanied by an intention to kill, but merely that
the shots the appellant fired had caused death and that there was criminal
responsibility. The court then entered a plea of not guilty on all three counts.
In doing so, it acted in terms of s 113(1) of the CPA which provides:

'If the court at any stage of the proceedings under section 112(1)(a) or (b) or 112(2)
and before sentence is passed is in doubt whether the accused is in law guilty of the
offence to which he or she has pleaded guilty or if it is alleged or appears to the court
that the accused does not admit an allegation in the charge or that the accused has
incorrectly admitted any such allegation or that the accused has a valid defence to
the charge or if the court is of the opinion for any other reason that the accused's
plea of guilty should not stand, the court shall record a plea of not guilty and require
the prosecutor to proceed with the prosecution: Provided that any allegation, other
than an allegation referred to above, admitted by the accused up to the stage at
which the court records a plea of not guilty, shall stand as proof in any court of such
allegation.'
In accordance with the proviso, once the plea of not guilty had been entered,
the admissions in exhibit A stood 'as proof' of the allegations admitted.

[29] After the prosecutor had placed on record further admissions made by
the appellant and handed in exhibits to which they related, he asked that,
despite the fact that the court had recorded a plea of not guilty, the
admissions made in exhibit A should stand as formal admissions in the trial.
The appellant's advocate indicated that there was no objection to this being
done. The court nevertheless explained the position to the appellant and
asked him, twice, whether he made the admissions; and twice, the appellant
said that he did. It is quite clear from the record that the admissions were
sought and made in terms of s 220 of the CPA. That section provides:
'An accused or his or her legal adviser or the prosecutor may in criminal proceedings
admit any fact placed in issue at such proceedings and any such admission shall be
sufficient proof of such fact.'

[30] The distinction between ss 113(1) and 220 is this. When the plea of
guilty was tendered, there was no dispute between the State and the defence
and hence (to use the words of s 220) there was no 'fact placed in issue'.
Once the plea of not guilty had been entered, all the allegations in the
indictment were placed in issue (save that in terms of the proviso to s 113(1),
the admissions stood 'as proof' of the allegations admitted) and admissions in
terms of s 220 could be made. The difference in effect between the two
sections is that whilst an allegation, admitted by an accused up to the stage at

which the court records a plea of not guilty, stands 'as proof' of such
allegation, and therefore forms part of the probative material before the court,
an admission of a fact in terms of s 220 is 'sufficient proof' of such fact and no
further evidence is necessary.

[31] The significance of the admissions made in terms of s 220 is this: The
appellant admitted in respect of each count, and therefore three times, that
when he shot each deceased he knew that he was acting wrongfully and that
he could be punished therefor; and the appellant recorded that he had the
capacity to distinguish between right and wrong and that he further had the
capacity to act in accordance with such appreciation. The effect of the
admissions is that the appellant acknowledged criminal responsibility because
the admissions are inconsistent with a defence of criminal incapacity, whether
non-pathological or caused by mental illness or mental defect ─ although the
admissions are not inconsistent with diminished responsibility, which is
relevant to mitigation of sentence. The distinction is explained by Prof
Snyman38 in comparing s 78(1)39 of the Criminal Procedure Act, which
excludes criminal responsibility caused by mental illness or mental defect,
with s 78(7),40 which allows a court to take into account diminished
responsibility resulting from either cause in sentencing the accused. The
learned author, with reference to s 78(7), says:
'This subsection confirms that the borderline between criminal capacity and criminal
non-capacity is not an absolute one, but a question of degree. A person may suffer
from a mental illness yet nevertheless be able to appreciate the wrongfulness of his
conduct and act in accordance with that appreciation. He will then, of course, not
succeed in a defence of mental illness in terms of section 78(1). If it appears that,

38 Criminal Law 5 ed (2008) para 12 at 176-7.
39 'A person who commits an act or makes an omission which constitutes an offence and who
at the time of such commission or omission suffers from a mental illness or mental defect
which makes him or her incapable─
(a)
of appreciating the wrongfulness of his or her act or omission; or
(b)
of acting in accordance with an appreciation of the wrongfulness of his or her act or
omission,
shall not be criminally responsible for such act or omission.'
40 'If the court finds that the accused at the time of the commission of the act in question was
criminally responsible for the act but that his capacity to appreciate the wrongfulness of the
act or to act in accordance with an appreciation of the wrongfulness of the act was diminished
by reason of mental illness or mental defect, the court may take the fact of such diminished
responsibility into account when sentencing the accused.'

despite his criminal capacity, he finds it more difficult than a normal person to act in
accordance with his appreciation of right and wrong, because his ability to resist
temptation is less than that of a normal person, he must be convicted of the crime
(assuming that the other requirements for liability are also met), but these
psychological factors may be taken into account and may then warrant the imposition
of a less severe punishment.'
The same distinction applies where mental illness is not present, as appears
from a number of judgments of this court eg S v Smith,41 S v Shapiro,42 and S
v Ingram.43 According to these cases, the fact that the defence of temporary
non-pathological criminal incapacity fails, or is not raised, does not have the
consequence that the accused must be sentenced as if he/she was acting
normally. The contrary is the case. A person who acted with diminished
responsibility is guilty, but his/her conduct is morally less reprehensible
because the criminal act was performed when the accused did not fully
appreciate the wrongfulness of the act or was not fully able to act in
accordance with an appreciation of such wrongfulness.

[32] The consequence of the admissions was to put the appellant's criminal
capacity beyond issue. Cameron JA said in S v Groenewald:44
'An admission is an acknowledgment of a fact. When proved or made formally during
judicial proceedings, it dispenses with the need for proof in regard to that fact.
Wigmore on Evidence calls it "a method of escaping from the necessity of offering
any evidence at all": a "waiver relieving the opposite party from the need of any
evidence".45 Section 220 of the Act, accordingly, makes it possible for a contested
fact to be put beyond issue since, once made, the admission constitutes "sufficient
proof" of it.'
Therefore, as pointed out by Rumpff CJ in S v Seleke & 'n ander:46
'Wanneer 'n erkenning kragtens art 220 gemaak word, beteken dit dat 'n beskuldigde
nie later kan beweer dat wat erken is, nog deur die Staat bewys moet word nie. Die
woorde "voldoende bewys" onthef dus die Staat van die las om die betrokke feit wat

41 S v Smith 1990 (1) SACR 130 (A) at 135b-e.
42 S v Shapiro 1994 (1) SACR 112 (A) at 123c-f.
43 S v Ingram 1995 (1) SACR 1 (A) at 8d-i.
44 S v Groenewald 2005 (2) SACR 597 (SCA) para 33.
45 John Henry Wigmore Evidence in Trials at Common Law, revised by James Chadbourn
(1972) vol 4 para 1058.
46 S v Seleke & 'n ander 1980 (3) SA 745 (A) at 754F-H.

erken is, op enige ander manier te bewys, tensy die Staat, om spesiale redes, nog
ander getuienis omtrent die feit aan die Verhoorhof wil voorlê.'

[33] The appellant, having made the admissions formally, was not entitled
to require the State to cross the hurdle the admissions were intended to
eliminate. And much less was it open to the appellant, having made the
admissions, himself to create a hurdle by leading evidence inconsistent with
the admissions, for the same reason. But that is precisely what the appellant's
attorney, once the appellant's counsel had been relieved of his mandate,
sought to do. When the prosecutor put paragraph 7.3 of exhibit A to Dr
Panieri-Peter, the psychiatrist called by the State, and the witness had replied
'it is a question of diminished responsibility', the judge intervened, rehearsed
the facts leading to the State's non-acceptance of the plea explanation and
pointed out that the appellant's attorney had previously indicated in cross-
examination of State witnesses that he would argue that a verdict of not guilty
should be returned; and the judge at the end of the case permitted argument
to this effect. The admissions made formally in terms of s 220 were simply
ignored. None of this should have been allowed.

[34] For so long as a formal admission stands, it cannot be contradicted by
an accused whether by way of evidence or in argument. To hold otherwise
would defeat the purpose of s 220, eliminate the distinction between a formal
admission in terms of that section and an informal admission which may be
qualified or explained away, and thereby lead to confusion in criminal trials.
As Viljoen JA said in S v Mjoli47 in a concurring judgment:
'By reason of the fact that an admission formally made by or on behalf of the accused
is "sufficient evidence", the effect is that such fact virtually becomes conclusive proof
against him because the accused himself or his legal representative on his behalf
has made the admission and any effort by him or on his behalf to adduce evidence
countervailing such fact would be inconsistent with his having made the admission.'

47 S v Mjoli 1981 (3) SA 1233 (A) at 1247B-C.

[35] There is no authoritative pronouncement as to how an accused may
escape the consequences of a formal admission, once made. Rumpff CJ said
in Seleke after the passage quoted above:
'Voldoende bewys is natuurlik nie afdoende bewys (conclusive evidence) nie en kan
later deur die beskuldigde, bv, weens dwang of dwaling of deur ander regtens
aanneemlike feite, weerlê word.'
In S v Daniëls & 'n ander48 Nicholas AJA and Botha JA adopted different
approaches. Nicholas AJA (having quoted the provisions of s 220)
continued:49
'The words "sufficient proof" relieve the State of the onus of proving the admitted fact
in any other way (S v Seleke en 'n Ander (supra at 754G-H)).

In a civil case the Court has a discretion to relieve a party from the
consequences of an admission made in error in a pleading (see Gordon v Tarnow
1947 (3) SA 525 (A)). So too in a criminal case the Court has a discretion to relieve
an accused from the consequences of a formal admission on a ground recognised by
law. Examples are where an admission was made as a result of compulsion or
mistake (see S v Seleke en 'n Ander (supra at 754H)), or where the making of it has
been attended by an irregularity.'
Botha JA said:50
'Ter wille van duidelikheid moet ek ook verwys na die analogie wat my Kollega
Nicholas vind tussen die terugtrekking van 'n erkenning in 'n siviele saak, soos
bespreek in Gordon v Tarnow 1947 (3) SA 525 (A) op 531-2, en die moontlikheid om
'n beskuldigde te verlos van die gevolge van 'n erkenning in 'n strafsaak, soos
bespreek in S v Seleke en 'n Ander 1980 (3) SA 745 (A) op 754G. Ek is met eerbied
nie oortuig daarvan dat die analogie volkome suiwer is nie. In 'n siviele saak word die
party wat 'n erkenning gedoen het nie toegelaat om getuienis in stryd met die
erkenning voor te lê nie, tensy hy eers verlof kry om die erkenning terug te trek. 'n
Soortgelyke standpunt kan op die gebied van die strafreg in verband met die
toepassing van art 220 gehuldig word (vgl bv, Schmidt Bewysreg 2de uitg op 217-8),
maar na my mening is daar veel te sê vir 'n ander benadring, ten minste in die geval
waar art 220 ter sprake kom as gevolg van die toepassing van art 115 uit hoofde van
arts 119 en 122. Om 'n uiterste voorbeeld te neem: 'n beskuldigde op 'n aanklag van
moord erken, ingevolge die genoemde artikels, dat hy die oorledene doodgemaak

48 S v Daniëls & 'n ander 1983 (3) SA 275 (A)
49 At 298G-H.
50 At 318C-319A.

het; by sy verhoor kom daar getuienis vorendag (hoe ook al) wat bewys dat hy op die
betrokke dag in die gevangenis was en dat dit onmoontlik is dat hy die oorledene kon
gedood het; maar die beskuldigde bied geen verklaring aan waarom hy die erkenning
gedoen het nie. Ek kan my dit nie indink dat enige Hof die weerleggende getuienis
van oorweging sal uitsluit nie, selfs al voer die beskuldigde nie aan dat hy sy
erkenning gedoen het as gevolg van dwang, dwaling, onbehoorlike beïnvloeding of
dies meer nie. Artikel 220 se verwysing na "voldoende bewys" kan nie beteken dat
die Wetgewer beoog het of dat 'n hof sy oë of ore vir die waarheid moet sluit nie. In
die geval van buite-geregtelike bekentenisse is dit nog altyd aanvaar dat 'n hof aan
die einde van die saak, selfs waar die toelaatbaarheid van die bekentenis buite twyfel
is en daar aan die vereistes van art 209 voldoen is, bo redelike twyfel seker moet
wees dat die bekentenis die waarheid is alvorens 'n skuldigbevinding geregverdig is
(S v Mlambo 1975 (2) SA 549 (A) op 554C en S v Kumalo, 31 Augustus 1982 (A),
ongerapporteer). Volgens my mening is dit goed argumenteerbaar dat dieselfde
benadering toepaslik is waar daar in die samehang van arts 115, 119, 122 en 220
rede ontstaan, op watter wyse ook al, om die juistheid te betwyfel van 'n erkenning
wat 'n beskuldigde gemaak het. . . . . As dit so is, sal dit op die feite van die huidige
saak geen verskil maak of beskuldigde 2 se uitlatings voor die landdros beskou word
as erkennings of slegs as bewysmateriaal nie.'

[36] It may be noted that there is a fundamental difference between s 220 of
the CPA, and s 15 of the Civil Proceedings and Evidence Act51 which
provides:
'It shall not be necessary for any party in any civil proceedings to prove, nor shall it
be competent for any such party to disprove any fact admitted on the record of such
proceedings.' (Emphasis supplied.)

[37] In my view, the minimum that an accused who wishes to lead evidence
or advance argument inconsistent with a formal admission in terms of s 220
would first have to show, before being allowed to do so, is that there is an
explanation consistent with bona fides why the admission was made in the
first place and why he or she now wishes to resile from it. No doubt, as
pointed out by Botha JA in the passage quoted above from the Daniëls case,
a court will not in a criminal matter close its eyes and ears to the truth and

51 25 of 1965.

convict an accused based on an admission where the admission is clearly
wrong ─ as Hiemstra puts it:52
'The purpose of the process is and remains to get to the truth, namely what
happened, and not to determine what was said about it';
but that is a far cry from allowing the accused himself or herself without more
to lead evidence or advance argument contrary to an admission he or she has
formally made.

[38] In the present matter the appellant's attorney delivered further heads of
argument, in response to a request by the court, on whether, in view of the
admissions contained in the appellant's plea explanation formally recorded in
terms of s 220, he was entitled to argue that the appellant was not criminally
responsible for his actions in shooting the three deceased. The appellant's
attorney submitted that the appellant had made the admissions in
circumstances where:
(i)
he had loss of memory in respect of the shooting incidents;
(ii)
he had a defence available when he pleaded;
(iii)
he is a lay person in psychiatry and psychology;
(iv)
he pleaded on the advice of his legal representatives, who are not
experts in the fields of psychiatry and psychology;
(v)
he acted bona fide on the strength of incorrect findings in expert
reports and was guided by the findings therein contained; and
(vi)
there was prima facie an evidential burden on him to prove his lack of
criminal responsibility.
First, this explanation is irreconcilable with the admission by the appellant in
para 7.5 of his plea explanation that his mental state had been fully discussed
with him by both of his legal representatives and his psychiatrist and his
psychologist, and that he fully appreciated its ambit. Second, there is no
factual foundation for the submission that at the time he pleaded, the
appellant had a defence. The appellant's attorney relied for this submission on
the report of the psychiatrist consulted by the appellant, Dr Neil Fouché. In
that report Dr Fouché wrote:

52 Kruger Hiemstra's Criminal Procedure sv s 220.

'It would, therefore, be fair to conclude that this gentleman, for the period preceding
the incident on 28 July 2006, was mentally ill and that his mental state certainly
impaired his functioning and judgment.'
The word 'impaired' connotes 'rendered worse', 'damaged' or 'weakened'53 or,
to use the word in s 78(7), 'diminished'. It does not mean 'excluded' or
'prevented' and the report cannot be read as meaning that the appellant was,
by reason of his mental state and as required by s 78(1) of the CPA or the
defence of temporary non-pathological incapacity,54 rendered 'incapable' of
appreciating the wrongfulness of his acts or acting in accordance with such
appreciation at the time he shot the three deceased.

[39] It is unfortunately necessary, although the law is clear, to deal with the
submission by the appellant's attorney that impairment sufficed to bring his
client within the provisions of s 78(1)(b). For that submission, reliance was
placed on the following passage in Burchell Principles of Criminal Law55 in the
section headed 'Capacity to act in accordance with such appreciation (self-
control)':
'The test was originally described melodramatically as the "irresistible impulse" test.
However, the description was misleading since the illnesses concerned did not
necessarily manifest themselves in impulsive actions. Further, the notion of
"irresistible" suggested that the victim had to have been subjected to an
overpowering force, while the true issue is whether his normal capacity for self-
control has been substantially impaired.'
But the paragraph immediately following the paragraph just quoted begins:
'The formulation of this test of insanity in South African law requires that the mental
illness or defect should have caused the accused to be incapable of acting "in
accordance with an appreciation of the wrongfulness of his act". The general effect of
s 78(1)(b) of the Criminal Procedure Act is thus that although the accused was
capable of appreciating (and even if he did appreciate) the wrongfulness of his act,
he is still not criminally responsible if at the time of its commission he suffered from
mental illness or mental defect which made him "incapable of acting in accordance
with" such appreciation.'

53 OED 2 ed vol VII.
54 See the authorities quoted in the next para below.
55 3 ed (2005) p 382 and see also p 378.

Section 78(1) is clear in its terms: for it to be applicable, the accused must
have been 'incapable' of either appreciating the wrongfulness of his or her act
or omission or of acting in accordance with an appreciation of such
wrongfulness. That is the very distinction between s 78(1), and s 78(7) which
provides for the situation where the accused's capacity to appreciate the
wrongfulness of his or her act or omission or of acting in accordance with
such appreciation, was 'diminished' by reason of mental illness or mental
defect. A similar distinction exists in regard to the defence of temporary non-
pathological criminal incapacity. Smallberger JA said in Ingram:56
'The guilt or innocence of the appellant depends upon whether, as put forward in his
defence, he was suffering from a temporary non-pathological incapacity when he
shot the deceased and was therefore criminally unaccountable for his conduct.
Accountability in this context depends upon a person's ability to (1) distinguish
between right and wrong and (2) exercise restraint or control over his or her actions
which are unlawful. If either of these psychological characteristics is absent the
person concerned would not be criminally responsible for his conduct (S v Laubscher
1988 (1) SA 163 (A) at 166F-J).' (Emphasis supplied.)
And Kumleben JA said in S v Smith:57
'In the light of this evidence it cannot be said that at the critical time the appellant was
bereft of her senses or was not on any other ground criminally responsible for her
actions.

Having said this, it is nevertheless clear that her shooting of the deceased
was the final result of a prolonged period of sustained and mounting mental strain, of
which the deceased was the cause. Whether it was the result of anger, frustration or
humiliation, or more than one of these emotions, is immaterial. What is plain is that
they must have substantially reduced her power of restraint and self-control. This
fact, though highly relevant to the question of sentence, cannot affect her criminal
liability. The conviction of murder was, in my view, fully justified.'58

[40] The appellant on his own version as recorded in his plea explanation
exercised a fully informed choice. And he made no mistake. He knew exactly
what he was doing. He also knew what the consequence was ─ this was spelt

56 Above, n 43 at 4E-G.
57 Above, n 41 at 135E-G.
58 See also S v Kalogoropoulos 1993 (1) SACR 12 (A) at 24b-c and 25i and the dissenting
judgment in DPP, Transvaal v Venter 2009 (1) SACR 165 (SCA) para 51.

out in his plea explanation over and over again: he had no defence based on
his alleged mental state.

[41] The position is therefore that the appellant has advanced no
acceptable explanation consistent with bona fides as to why he should be
relieved of the consequences of his formal admission. I accordingly conclude
that the trial should have been conducted, and that the appeal should be
approached, on the basis that the appellant was able to appreciate the
wrongfulness of his acts and act in accordance with such appreciation; and
that the only issue, which is relevant solely to sentence, is the extent to which
he acted with diminished responsibility. In any event, however, as my
colleague Snyders has demonstrated, the defence raised by the appellant is
without merit. I concur in her judgment.

Order
[42] The appeal is dismissed.

________________
T D CLOETE
JUDGE OF APPEAL

SNYDERS JA (CLOETE and THERON JJA concurring):

[43] Despite the appellant’s admission of criminal capacity at the
commencement of the trial, full ventilation of that issue was allowed by the
trial court. The appellant persisted in that defence during the trial and on
appeal by contending that the evidence entitles him to an acquittal in terms of

s 78(6) of the Criminal Procedure Act 51 of 1977 (the Act).59 In order to avoid
any possible prejudice to the appellant I will now explore whether the
evidence shows that it is reasonably possibly true that the appellant had no
criminal capacity at the time that he committed the crimes in question.60

[44] On Friday evening of 28 July 2006 the appellant, a superintendent in
the South African Police Service, shot and killed his three children with his
service pistol. All three children, Bianca, a nearly 17 year old cerebral palsied
girl, Marius Eben, an almost six year old boy, and Antoinette, a 19 month old
toddler, were asleep in their beds when they were shot in their heads by their
father. Bianca was a child from the appellant’s previous marriage of whom he
enjoyed custody. The two younger children were of the appellant’s marriage
to police captain Charlotte van der Westhuizen to whom he was still married
and with whom he was still living at the time of the incident.

[45] The appellant claims amnesia in relation to the critical events of that
evening.61 As a result of this claim his wife was the only witness that gave a
version of the shooting. Insofar as the appellant does remember certain facts,
his version does not present a materially different scenario. Mrs van der
Westhuizen’s version is reconcilable with all the objective facts and contains
no inherent improbabilities. She was a good witness that testified

59 An acquittal in terms of s 78(6) presupposes a finding of a lack of criminal responsibility in
terms of s 78(1).
Section 78(1) is quoted in footnote 39 above.
Section 78(6) reads: ‘If the court finds that the accused committed the act in question and that
he or she at the time of such commission was by reason of mental illness or intellectual
disability not criminally responsible for such act – (a) the court shall find the accused not
guilty; or (b) if the court so finds after the accused has been convicted of the offence charged
but before sentence is passed, the court shall set the conviction aside and find the accused
not guilty,. . . .’. The rest of the ss deals with the directions a court would be capable of
making regarding the detention of such an accused in a hospital, institution or conditions of
release.
60 The trial court applied the usual standard of proof in criminal cases to avoid the appellant’s
objections to the provisions of s 78(1A) insofar as those could potentially have been
applicable.
61 Whether the appellant actually has amnesia is not an issue on which the trial court had to
make a finding as it does not constitute a defence. At worst for the appellant it may reflect on
his credibility and at best it may be a mitigating factor. The psychiatrist that testified on behalf
of the State, Dr Panieri-Peter, questioned the claim of amnesia, primarily due to the
patchiness and inconsistency of the appellant’s recollection being irreconcilable with amnesia.
The psychiatrist, Dr Fouché, and clinical psychologist, Mr Scholtz, that testified on behalf of
the appellant, accepted his claim without question.

spontaneously, realistically, maturely and to the point. She withstood
prolonged and harrowing cross-examination. Criticism of her evidence as
untruthful and overly dramatic is without any merit. The trial court was correct
in accepting her version of the events as satisfactory in all material respects.

[46] The Van der Westhuizen couple had a long standing history of marital
discord. It manifested yet again that Friday evening. The appellant was
discontent because Mrs van der Westhuizen arrived later than he expected
her to, from work. Their differences did not develop into a full argument, but
rather silence filled with portent. She and the children went to bed early whilst
he continued with a do-it-yourself project. During the course of the evening he
discovered that she had given him a dishonest explanation for her lateness.
She told him that on her way home she had had to turn back because she
had forgotten Antoinette’s milk that she had bought earlier that day, at her
office. He discovered this to have been a dishonest explanation because he
checked the vehicle’s odometer reading and knew that she had only travelled
a sufficient number of kilometres that day to have travelled to work and back
home. According to him, this made him very angry, sad, frustrated and
disappointed. In truth she had volunteered to work late, but because her
relationship with her work and colleagues had become such a hugely
contentious issue in their marriage, she did not feel free to tell him the truth.

[47] Shortly before 10 o’clock that evening the appellant went to the main
bedroom where his wife was sleeping. He woke her and insisted that she
make a choice between him and her job. She responded irritably that it was
not a matter of choice and that she wanted to go back to sleep. He insisted
that she make a choice and she refused. He then jumped to the conclusion
that her lack of response amounted to her choosing her job and he verbalised
that conclusion. He got off the bed, switched on the light and went to the gun
safe with keys in hand. He unlocked the safe and took out his service pistol.
Still in bed, she asked him what he was going to do. He repeated that she had
chosen her job. He took her mobile telephone from the bedside table next to
her, walked out of the bedroom and shut the door. She jumped up and

followed him. When she opened the door he was in the passage next to the
door of the two girls’ bedroom. He switched on the passage light, repeated to
her that she had made her choice and said that she was going to have to bear
the consequences of her choice. He lifted the firearm, cocked it, turned and
entered the girls’ bedroom. He switched on the light and walked inside. He
first walked to Bianca’s bed, and aimed the firearm at her head. Mrs van der
Westhuizen entered the bedroom. The appellant looked at her and shot his
eldest daughter in her head. He turned, lifted his hand over the railing that
prevented Antoinette from falling out of bed and shot her in her head, after
again repeating to Mrs van der Westhuizen that she had made her choice and
that she was going to bear the consequences of her choice. He did all of this
despite her screams of protestation.

[48] The appellant walked calmly past Mrs van der Westhuizen, went down
the passage, switched on a further light in the passage, and also the light of
their son’s bedroom. She followed him, screaming at him to stop. He waited
for her to enter Marius Eben’s bedroom, and when she did, he shot their son
in his head. He looked at her and shouted: ‘You see, now your children are
dead’.62

[49] The appellant handed Mrs van der Westhuizen’s telephone back to her
and said she would probably now telephone her superior officer, Senior-
Superintendent Brand, for help. She went back to her bedroom and dialled
Brand’s number. The appellant came to the bedroom door with both of his
mobile telephones in his one hand and the firearm still in the other. He told
her not to fear as he was not going to shoot her. He then left. Moments later
when Mrs van der Westhuizen tried to leave the house she discovered that he
had locked her inside the house with the dead children.

[50] Hours after the appellant had shot his children and whilst hiding in the
garden, he shot himself. He put the pistol under his chin and pulled the
trigger, but missed all vital organs.

62 Direct translation of Mrs van der Westhuizen’s evidence: ‘Sien jy, jou kinders is nou dood’.

[51] The appellant was referred to Valkenburg psychiatric hospital in terms
of s 78(2) for enquiry and report in terms of s 79 of the Act.63 Dr Panieri-Peter,
the specialist psychiatrist appointed by the Medical Superintendent of
Valkenburg on the panel that was to enquire into the mental condition of the
appellant, presented the unanimous findings of the panel in court. The experts
made the following findings in terms of s 79 of the Act:
‘79(4)(b)
1.
Clinical Diagnosis: not mentally ill

2.
He is NOT certifiable in term of the Mental Health Act.
79(4)(c)
He is fit to stand trial in terms of Section 77(1).
79(4)(d)
He was able to appreciate the wrongfulness of the alleged offence,
and act accordingly.’64

[52] Dr Panieri-Peter did not hesitate to express her professional opinion on
the facts available to her during the enquiry and as supplemented during her
evidence. She held the view that the appellant, at the time of the commission
of the murders, was able to appreciate the wrongfulness of his actions and
was able to act in accordance with that appreciation. The trial court accepted
those findings.

[53] In this court the appellant repeated a gratuitous attack on the integrity
of Dr Panieri-Peter. As the trial court did, I find no foundation whatsoever for
such an attack. It is regrettable that professionals in conducting a trial should
perceive the need for gratuitous attacks on the integrity of a professional
expert witness who properly performs a vital function in the interests of the

63 Section 78(2) reads: ‘If it is alleged at criminal proceedings that the accused is by reason of
mental illness or mental defect or for any other reason not criminally responsible for the
offence charged, or if it appears to the court at criminal proceedings that the accused might
for such a reason not be so responsible, the court shall in the case of an allegation or
appearance of mental illness or mental defect, and may, in any other case, direct that the
matter be enquired into and be reported on in accordance with the provisions of section 79.’
Section 79 is a lengthy section that deals, inter alia, with the composition of the panel for the
purpose of the enquiry, the committal of the accused to a psychiatric hospital for that purpose,
the furnishing of information to the panel and the nature of the report.
64 Section 79(4) reads: ‘The report shall – (a) include a description of the nature of the
enquiry; and (b) include a diagnosis of the mental condition of the accused; and (c) if the
enquiry is under section 77(1), include a finding as to whether the accused is capable of
understanding the proceedings in question so as to make a proper defence; or (d) if the
enquiry is in terms of section 78(2), include a finding as to the extent to which the capacity of
the accused to appreciate the wrongfulness of the act in question or to act in accordance with
an appreciation of the wrongfulness of that act was, at the time of the commission thereof,
affected by mental illness or mental defect or by any other cause.’

administration of justice. Dr Panieri-Peter expressed her opinions in a firm,
clear, well motivated and reasoned manner. By doing so she fulfilled the
function of an expert witness to the letter.65

[54] The expert witnesses that testified for the appellant did not challenge
her conclusion that the appellant had criminal capacity when he murdered his
children. Dr Fouché, a psychiatrist, testified on behalf of the appellant. The
appellant was referred to Dr Fouché for treatment at the end of August 2006
by the physician who treated him after he shot himself. Dr Fouché entered
into a therapeutic relationship with the appellant for a period of approximately
two years. A therapeutic role is substantially different to the forensic role Dr
Panieri-Peter and her colleagues were called upon to perform. The inherent
difference between the two functions is obvious. As therapist Dr Fouché was
expected to accept information furnished by the appellant to him and provide
therapy on the strength thereof, whereas Dr Panieri-Peter was meant to
investigate, question and enquire with a view to objectively and factually
ascertain the appellant’s mental health at the time of the incident. This
distinction serves to illustrate why there is a substantial difference in
objectivity when the views of the two psychiatrists are compared.

[55] Despite that distinction Dr Fouché did not come to a conclusion that the
appellant did not have criminal capacity when he committed the murders. In
his report, compiled during November 2008, he addressed a substantially
different issue to that contained in s 78(2) of the Act, as his conclusion
reflects:
‘79(4)(b)
1.
He has a Recurrent Depressive Disorder current episode mild
Post Traumatic Stress Disorder of moderate severity

Abnormal Bereavement Process.

2.
He is not certifiable in terms of the Mental Health Act.
79(4)(c)
He is fit to stand trial according Section 77(1).

65 Insofar as it is necessary to refer to the purpose of opinion evidence by an expert witness
and the approach a court is to adopt regarding such evidence, I draw attention to the following
authorities: S v Adams 1983 (2) SA 577 (A) at 586C; S v Kleynhans 2005 (2) SACR 582 (W)
at
585a-g;
Coopers
(South
Africa)
(Pty)
Ltd
v
Deutsche
Gesellschaft
Für
Schädlingsbekämpfung Mbh 1976 (3) SA 352 (A) at 371G-H.

79(4)(d)
He has the ability to appreciate the wrongfulness of the alleged
offence and act accordingly.’

[56] Dr Fouché in his report addressed the appellant’s mental condition
prior and subsequent to the incident. The latter is not particularly helpful when
criminal capacity at the time the murders were committed, is considered. In
relation to the former he accepted that the appellant suffered from depression
and anxiety prior to the incident and stated that the appellant’s ability to act in
accordance with his appreciation of wrongfulness was impaired. He repeated
this view during cross examination, but then explained it to mean that the
appellant had the ability to distinguish between right and wrong, but was
unable to act in accordance with that distinction. He formed this view because
the appellant, after he shot his children, tried to commit suicide. Dr Fouché felt
that an attempt to commit suicide is indicative of the absence of the ability to
act in accordance with insight into right and wrong. The difficulty with this view
is that it again relates to the period after the appellant shot the children
whereas the true investigation should focus on the time prior to and at which
he did so. Dr Fouché’s attempt to typecast the events surrounding the
murders as an extended suicide is not supported by any evidence, not even
that of the appellant.66 He conceded that his evidence in this regard was a
mere theory to try and understand why the appellant did what he did.

[57]  Dr Fouché’s evidence reveals that he was not fully comfortable in
dealing with the concept of criminal capacity and the distinctions drawn in
s 78(1) of the Act. He struggled to express a consistent and clear opinion on
the appellant’s ability or inability to have acted in accordance with his
appreciation of right and wrong. Towards the end of his cross examination, Dr
Fouché reverted to the position that the appellant’s ability to have acted in
accordance with his appreciation of right and wrong was seriously diminished,
not absent. It is fair to say that Dr Fouché spoke rather loosely and was not
qualified to venture a forensic view from his therapeutic perspective, but even

66 Crudely described as a parent wanting to take his own life and killing his children because
he does not want to leave them behind in a helpless state.

so, he did not advance the view that the appellant did not have the ability to
act in accordance with his appreciation of right and wrong. Dr Fouché’s
evidence, with all its shortcomings, was the highwater mark of the appellant’s
defence.

[58] Mr Scholtz, a clinical psychologist, was consulted by the appellant
during November 2008 on an ad hoc basis to make a clinical assessment of
him. His report does not address the appellant’s criminal capacity. It states
that the appellant suffered from clinical depression and post traumatic stress
disorder prior to the incident. His report is based on information from the
appellant obtained during one three-hour consultation. During that
consultation Mr Scholtz explained that he had deliberately refrained from
enquiring from the appellant about the events of the evening, for fear of losing
his objectivity. In his report he states:
‘Clinical Depression and Post Traumatic Stress Disorder can significantly effect a
person’s personal, social and occupational functioning. It could also lead to a degree
of distorted thinking and impaired judgment.’

[59] Mr Scholtz also testified. Understandably he was hesitant to express a
firm view on the appellant’s criminal capacity on the strength of his
consultation. His strongest evidence for the appellant was that the appellant’s
ability to act in accordance with acceptable norms was probably diminished
because he suffered from depression and post traumatic stress at the time of
the incident.

[60] All the expert witnesses were confronted with the facts that the
appellant relies on for his persistent contention that he had no criminal
capacity. None of the expert witnesses changed their opinions to support the
appellant’s contention. At best for the appellant their evidence supports a view
that his ability to act in accordance with an appreciation of wrongfulness was
impaired or diminished. In para 39 of my colleague Cloete’s judgment it is
made clear that the argument that impairment is sufficient for a finding in
terms of s 78(1)(b) is without any substance. The trial court’s finding of

diminished criminal capacity was not challenged by the State on appeal. It is
therefore not necessary to consider the contrary opinion of Dr Panieri-Peter.

[61] The next enquiry is to ascertain whether the trial court should have
rejected the unanimous s 79 finding and the unanimous view of the expert
witnesses in favour of a finding that the appellant did not have the ability to act
in accordance with his appreciation that what he was doing was wrong.

[62] The attorney for the appellant argued that the appellant suffered from a
pathological incapacity that negated his ability to act in accordance with his
appreciation of the wrongfulness of his actions. He argued that the
depression, anxiety and post traumatic stress disorder that he suffered from
each constituted a pathology. The submission was further that the existence
of a pathology taken together with the fact that the murders were irrational
and contrary to the appellant’s loving, kind and soft hearted personality,
compels the conclusion that the appellant had no ability to control himself.
The argument went so far as to state that once it is accepted that the
appellant suffered from a pathology it becomes irrelevant whether his actions
in committing the murders appeared deliberate and goal directed.

[63] The latter contention is to be rejected because of the wording of
s 78(1). The section prescribes that two questions be answered irrespective of
whether the appellant suffered from a pathological or non-pathological
condition at the time of the commission of the murders. That the appellant
appreciated the wrongfulness of his actions was never disputed. His actions
before, during and after the murders need to be scrutinised to determine
whether he was able to act in accordance with his appreciation of
wrongfulness.

[64] The attorney on behalf of the appellant strongly relied on S v Kavin
1978 (2) SA 731 (W) and S v McBride 1979 (4) SA 313 (W) as analogous to
this matter. This reliance is unfounded. In both those cases the panel of
psychiatrists made a unanimous report in terms of s 79(4) that the accused, at

the time that the crime that was committed, was unable to act in accordance
with an appreciation of wrongfulness. In Kavin it was reported that the
accused suffered from ‘[s]evere reactive depression super-imposed in a type
of personality disorder displaying immature and unreflective behaviour . . .
[which] produced a state of dissociation’. In McBride the unanimous report
was that the accused suffered from endogenous depression.

[65] The appellant introduced evidence of all the stress factors that
operated in his life leading up to the incident. Much of this evidence was
common cause or undisputed and even insofar as disputed, was taken into
account in the appellant’s favour by the trial court. The appellant occupied a
stressful position of leadership in the SAPS. He held the rank of
superintendant and was stationed at a large and very busy police station,
Claremont, in the Western Cape. Due to duties that frequently took his
commanding officer away from the station the appellant was in effect the
commander of the station. He was described by many witnesses as a
perfectionist in his work. Dr Fouché and Mr Scholtz supported that evidence in
that they found him to have obsessive-compulsive personality traits which
caused him to expect a very high level of performance from himself. The
extensive duties he was expected to perform and his own requirement to do
so to perfection placed a great deal of stress on him. As his workload
increased he reached the stage that he simply could no longer perform all his
duties or could not perform at the level he wanted to. This state of affairs
caused him to feel out of control which in turn caused him a measure of
depression and anxiety. He was no longer the calm, kind, strict perfectionist
that tried to be everything to everybody in his workplace. From about
December 2005 he was seen to behave uncharacteristically at work by hitting
his head against the wall, being abrupt with colleagues, being forgetful,
rushing around, gripping his chest in pain, looking worn out and stressed,
locking himself in his office, being withdrawn and being irritable and impatient.

[66] The appellant’s experiences as a policeman during his entire career
contributed to his emotional condition and depression. Throughout his career,

in the day to day execution of his duties he encountered very traumatic
events. Some of those involved colleagues, to whom he was emotionally
close, being killed virtually next to him. He was shot at on numerous
occasions and on several occasions his life was endangered in other ways.

[67] The appellant's marriage was another source of depression and
anxiety. There existed long standing marital discord between him and his wife.
She was stationed at the Kuils River police station. He had enormous
difficulties with the way she managed her working hours and they had
constant arguments about that. The appellant resented his wife working any
form of overtime without insisting on either payment or time off as
compensation as he believed she should have. However, not only did she
regard her situation as an administrative officer as being different to his, she
was reluctant to do what he wanted. She enjoyed her career and walked the
extra mile voluntarily and with good results. She progressed to the rank of
captain in a short period of time and had an excellent relationship with her
colleagues and commanding officer. These relationships were a source of
resentment for the appellant who perceived that she obtained more joy and
satisfaction from those relationships than from her marital relationship. The
evening that he shot the children it was her relationship with her work that
figured prominently in his decision to kill them.

[68] The appellant started suspecting his wife of having an extra-marital
relationship. Although he never confronted her with this and it objectively
appeared that he was wrong, he subjectively believed it and silently gathered
many pieces of information in support of his belief. He testified that she was
verbally and physically abusive towards him and the children and recounted
many examples of her behaviour.

[69] Taken with his obsessive-compulsive personality traits the appellant
experienced his disintegrating marriage more keenly than would objectively
be expected. It motivated him to do irrational things to her in an attempt to
dissuade her from following her own head but rather succumb to his wishes.

He took away the keys of their only vehicle, her means of transport to work, or
removed the rotor from the engine after she had come home late from work.
He did this under the pretext of needing the car to be available at home in the
event of an emergency arising with Bianca, his cerebral palsied daughter who
regularly developed emergency health issues. He hid the battery of her work
laptop computer when he felt that she had spent too much time working over
the weekend, depriving the family of her time. He also did so after she
charged the battery of the computer at home, using the electricity that he was
paying for. He locked sweets in the safe when he decided that she ate too
many of them. He took away her credit and bank cards when she spent her
own money, even her bonus, contrary to their agreed financial planning.

[70] The trial court accepted the evidence by and on behalf of the appellant
about all of the stresses, strains and anxieties that affected him in the period
preceding the killing of his children. In a benevolent approach to the appellant
the trial court did not pay any attention to the dramatic development of the
appellant’s version during the course of the proceedings. This development
took place in two respects. First, the allegations of violent and abusive
behaviour of his wife increased and became more serious as the trial
progressed. Second, the seriousness and extent of the stresses and strains
that influenced him escalated during the proceedings. I will similarly ignore
those inconsistencies. The trial court accepted that these factors caused the
appellant to have been depressed, anxious and suffering from post traumatic
stress disorder. The evidence of Dr Panieri-Peter and Dr Fouché was that it is
recognised in their field of discipline that post traumatic stress disorder only
arises for victims of traumatically fearful and threatening events and it was
unlikely that the appellant suffered from post traumatic stress disorder prior to
the incident. The trial court ignored this evidence and found that the appellant
suffered from post traumatic stress disorder prior to the event. There was,
however, no cross-appeal.

[71] The facts that provide a clear picture contrary to that of a man that
behaved uncharacteristically and out of control, and therefore without criminal

capacity, were also taken into account by the trial court. As mentioned earlier
in this judgment, the appellant consistently and persistently over a period of
years took action to punish his wife and try and manipulate her into doing as
he wished her to do. He felt justified in his behaviour because of what he
perceived to be her errant behaviour. His manipulative behaviour became
increasingly serious. During March 2006 an incident occurred that motivated
Mrs van der Westhuizen to obtain an interim interdict against the appellant in
terms of the Family Violence Act 116 of 1998. She was late from work
because she had taken Antoinette to the doctor after fetching the children
from crèche. The appellant was furious when she came home later than
expected. She noticed that he had been drinking. He refused her the use of
the car to go to a chemist to buy the medicine that the doctor prescribed. His
verbal aggression scared her. She asked a neighbour to take her to a friend.
She telephoned her parents to fetch her from her friend and take her to the
chemist. After the medicine had been collected her parents took her home,
where an altercation occurred between the appellant and her father. The
appellant was aggressive and she described him as drunk. He locked his wife,
her parents and the sick child out of the house whilst the other two children
were with him inside the house. When she begged him to open the door he
told her to choose between her work and her parents on the one hand and
him on the other. Ultimately one of the appellant’s superiors, Director Roberts,
spent hours reasoning with him to calm him down and only in the early hours
of the morning did he allow his wife and the sick child back into the house.
The appellant was persuaded to leave with Roberts for the rest of the night.
The interim interdict that Mrs van der Westhuizen obtained after this incident
was withdrawn by her during May 2006 after the appellant apologised for his
behaviour.

[72] On the evening of 20 July 2006 whilst in bed with his wife the appellant
told her that he had been contemplating burning the house down with him
inside, but only after informing the fire brigade and the insurance that he had
started the fire. Such action would obviously have left her and the children
without a home and without any financial recompense.

[73] On occasion the appellant telephoned and had a meeting with Mrs van
der Westhuizen’s commanding officer, Brand, a superior officer to him, and
sought to interfere in his wife’s working conditions. His interaction with Brand
resulted in her demanding, via his superiors, an apology from him for his
disrespectful treatment of her. The appellant apologised.

[74] The evening of the murders was no different to many others. The long-
standing disagreement between the appellant and his wife about her working
hours re-surfaced. They both seemed to have resolved rather to keep quiet
than fight about it. He was having a few drinks, as was his habit. He continued
working on a do-it-yourself project after she and the children had gone to bed.
He was looking forward to the celebration of his birthday in two days’ time and
the company of guests whom they had invited for the occasion. He was also
looking forward to receiving his bonus and was pleased that his dream of
purchasing a double cab bakkie, the fruit of years of financial planning and
discipline, was within his grasp. According to him his wife’s lie about having
had to return to work to fetch the milk she had forgotten only became
apparent to him after she had gone to bed. This, he said, provided the trigger
that made him very angry, to the extent that he felt a glowing sensation over
his whole body. It also made him feel despondent and hurt. Whether this so-
called trigger event occurred later rather than earlier in the evening as told by
his wife is immaterial. The appellant at no stage claimed to have acted in a
state of sane automatism induced by this trigger. Quite the contrary, he still
remembers going back into the house, putting his glass in the kitchen, going
to the bedroom and removing the firearm from the safe and the fact that his
firearm jumped in his hand when he shot Bianca.

[75] He also remembers asking his wife to make a choice between him and
her work. They put this at different times in relation to the first shot that he
fired, but for reasons already mentioned, that is irrelevant. According to him
her answer, which he interpreted as a choice for her work, again brought the
warm glow all over his body. The appellant acted in a manner that illustrates

deliberate, reasoned and complex behaviour. He put a choice to her and
when her answer was not what he wanted to hear he commenced behaviour
that resulted in the ultimate punishment for her. He took her mobile telephone,
preventing her from telephoning for help. He opened and closed doors and
switched on lights as he went. He waited for her to arrive in the bedrooms of
the children before he pulled the trigger. He ignored her screams and pleas to
stop. The horror of his first, nor for that matter his second, shot did not throw
him off course. He kept on repeating to her that his actions were the
consequences of her choice. He told her that she should not fear as he was
not going to shoot her. He only handed her mobile telephone back to her after
all three children were killed and then, in line with his resentment about her
work and good working relationship with Brand, he remarked that she was
probably going to telephone her commanding officer for help. This remark,
given the context, was an ironical taunt. The appellant then locked his wife in
the house with the dead children and went and hid in the back garden.

[76] From his position of hiding he telephoned several people and told them
that he had shot his children. He telephoned a friend and colleague that was
invited for his birthday celebrations and told him that the event had been
cancelled because he had shot his children. He told his commanding officer
that he was not prepared to go to jail. He misled the police as to his position
and ultimately, when they found him, and the task force moved in, ready to
shoot him if necessary, the appellant shot himself under the chin, more than
three hours after he killed his children. At no stage after the murders and
before he shot himself did the appellant act in a surprised, shocked,
bewildered or distraught state as would have been expected had the
realisation of what he had done only dawned on him after his actions were
complete.

[77] The manner in which the appellant executed his children, his behaviour
and communication during and after the incident and the ordinariness of the
events earlier that evening all indicate that the appellant acted in a controlled,
deliberate and reasoned manner in perfect keeping with his usual pattern of

behaviour viz-a-viz his wife. The trial court’s finding that the appellant was
criminally capable when he murdered his children is consistent with all the
evidence and cannot be faulted.

[78] The trial court accepted in the appellant’s favour that he acted with
diminished responsibility. A finding as to the degree of diminution was not
expressly made. A finding that the degree of diminution was substantial or
severe, is not possible. At best, it is borderline and the appellant received the
benefit of any doubt. The appellant did not find himself in a position, as in all
reported cases of diminished responsibility, where he faced a choice – to
continue suffering emotional pressures or act against the person creating that
pressure. His situation is in reality no different to that of an accused that relies
on many mitigating factors.

[79] The fact of diminished responsibility was accepted by the trial court as
a substantial and compelling circumstance within the meaning of s 51(3) of
the Criminal Law Amendment Act 105 of 1997. That is why the prescribed
minimum sentence of 15 years’ imprisonment for each of the murders was not
imposed.

[80] The appellant’s attack on the sentence was that it is shockingly
inappropriate in the circumstances. In support of this contention the
appellant’s attorney specifically referred to the following circumstances: he
had already suffered enough and will continue to suffer because he killed his
own children, he was not to blame for the state of diminished responsibility
that he was in, his remorse was not adequately taken into account, he is a
suitable candidate for correctional supervision and private treatment for his
depression and related issues would be more effective outside of prison in a
more supportive and conducive environment.

[81] The trial court dealt with each and every mitigating factor, including the
circumstances emphasized on appeal. A repetition of all those facts is

unnecessary and I will confine this judgment to mentioning the ones that give
the balanced picture.

[82] The appellant was a 44 year old police superintendant at the time of
the incident. He has had a very successful career. He was respected by all his
colleagues. He was known as a disciplined, dedicated, astute police officer.
He insisted on discipline at his police station from all his subordinates, but
always acted fairly, reasonably and even-handedly. He had the community’s
interests at heart and showed that by dedication beyond the call of duty. He
devoted himself to the community policing trauma centre attached to the
Claremont police station. He was always ready and prepared to assist
colleagues with personal issues.

[83] The substantial support that he has received since the incident from
friends, former colleagues and members of the community bears testimony to
the high regard in which he is held. Many witnesses testified to what a good
man he is and what a dedicated, loving father he was.

[84] In the performance of his police duties over his years of service he had
encountered many situations that left him with distressing emotional
impressions. He had lost colleagues in the line of duty and encountered
several life threatening situations.

[85] The demands of his job became inordinate and overbearing. What he
used to do with dedication and care became a source of stress. He felt he
could no longer perform his functions in the manner he wanted to. The
deterioration of his marriage relationship also caused him distress. The
problems between him and his wife were of long standing. No prospect of
improvement was evident. As a result of his obsessive-compulsive personality
traits these circumstances caused him depression, anxiety and post traumatic
stress disorder.

[86] Since the incident the appellant has lost the life he knew previously. He
resigned from the police force, he lost his wife and children, his home, hopes,
dreams and ambitions. There is no doubt that the appellant has been
experiencing a great deal of sorrow. He will no doubt continue to suffer for he
has to live with the knowledge that he murdered his children.

[87] Whatever level of depression he experienced before the incident, it has
been deepened by the consequences of the incident. He suffered a serious
head injury, albeit by his own hand. He has been receiving psychiatric
treatment since shortly after the incident and continues to be in need of such
treatment. It was argued that he would be unable to receive appropriate
treatment in prison and that the prison environment is not conducive to his full
recovery. To succumb to such an argument would place the emphasis of the
sentence exclusively on the appellant’s interests. Requiring psychiatric
treatment is hardly a reason not to be imprisoned. The prison authorities are
statutorily obliged to provide the necessary health care to inmates.67 Mr
Joseph, the regional coordinator of health services within the Department of
Correctional Services in the Western Cape, testified that psychiatric and
psychological services are available to inmates. His evidence in this regard
was uncontroverted and confirms the practical implementation of the statutory
duty.

[88] The evidence before the trial court was that the appellant is an
appropriate candidate for correctional supervision. That does not mean for a
moment that correctional supervision would be an appropriate sentence in the
circumstances. The appellant’s attorney relied on S v Marx68 for the
submission that correctional supervision would be an appropriate sentence.
The attempted analogy is completely inappropriate. In Marx it was found that
the accused acted with severely diminished responsibility when he shot his
wife after she had been unfaithful to him, humiliated, belittled and emotionally
taunted him over an extensive period of time.

67 Section 12 of the Correctional Services Act 111 of 1998.
68 S v Marx 2009 (2) SACR 562 (ECG).

[89] I accept, as the trial court did, that the appellant deeply regrets the
death of his children. It is however alarming that he has persistently tried to
put some blame for the incident on his wife. He also continues to claim that he
was not to blame for the depression, anxiety and post traumatic stress
disorder that influenced his actions, firstly, because factors and events
external to him put stresses and strain on him and secondly, that because of
his particular personality traits he responded to those stresses and strains in a
way that caused the diminished responsibility.

[90] During her cross examination it was put to Mrs van der Westhuizen
that she contributed to the incident and could have avoided it. During the
hearing of this appeal the appellant’s attorney again argued that not only was
the appellant not to blame for the condition that motivated him to commit the
murders, but that his wife and the SAPS could have avoided the incident. This
attitude resonates with the reason why the appellant killed his children – to
punish his wife for a choice she seemingly made.

[91] Despite years of reflection and treatment, the appellant does not
realise that the way he handles life needs to change to avoid a similar
incident. Everyday life for the average individual presents stresses and
strains. The appellant is never going to escape that reality. If he continues to
blame others and to handle those stresses and strains inappropriately he
continues to present a potential danger to those closest to him and a similar
situation could present itself in the future. In view of his lack of insight and
relatively minor degree of diminished responsibility, deterrence and retribution
as purposes of sentencing do not recede into the background as in cases of
substantial diminished responsibility.69

[92] Although we are not necessarily to blame for our personality traits, we
are expected to live appropriately despite them. If we do not, the
consequences of our aberrant behaviour are punished. The appellant knew
best how the stresses and strains of his reality were impacting on him and

69 S v Shapiro 1994 (1) SACR 112 (A).

made him feel. He was the only one who could have known how necessary it
was to take appropriate action to help him in the circumstances. He was no
stranger to seeking professional help to cope with emotional issues. He did so
shortly after his first divorce when he took time off work and consulted a
psychologist for depression. He had been to consult psychologists with Mrs
van der Westhuizen for problems they experienced during the course of their
marriage. He was devoted to the trauma centre attached to his police station
where the main focus was the provision of emotional and psychological
assistance to victims of crime. The SAPS had and still has a dedicated
emotional and social services unit available to its members. His evidence that
he sought help form various professionals prior to the incident but was either
turned away or ignored rings hollow in the circumstances.

[93] I am satisfied that the trial court took all possible mitigating factors into
account and explored all the relevant facts in arriving at the sentence it
imposed. If only the mitigating factors and the interests of the appellant are
taken into account one could conceivably arrive at a sentence that does not
amount to long term imprisonment. However, if only the aggravating
circumstances are considered it is evident that a sentence of life
imprisonment would potentially have been appropriate.

[94] The crime that the appellant committed is abhorrent and the enormity
of it can hardly be over-emphasized. His three defenceless children were
executed in their sleep by their own father, a policeman, despite the screams
of protestation by their mother. Unlike any other reported case of diminished
responsibility they, the victims, did not contribute in any way whatsoever to
any of the stressors that the appellant said caused him to take their lives. The
only explanation for their murders came from the appellant’s own mouth as he
was murdering them. He punished his wife. The appellant has never tried to
explain his actions. During his evidence in the trial he said he wanted to shoot
himself and only went to the children’s rooms to say goodbye to them. How,
why and when his intention changed so that he took his ire out on his innocent
children, he has never even tried to explain.

[95] The appellant has in fact achieved what he set out to achieve. He has
caused his wife the ultimate agony, as her evidence revealed. For the rest of
her life she will have to contend with the horrific images of what occurred. Not
surprisingly she, too, has been under continued psychological treatment since
the incident.

[96] There is no question that the nature of the appellant’s crimes requires
the imposition of long term imprisonment. By imposing a sentence of one year
less than the prescribed minimum of 15 years’ imprisonment on each of the
murders and ordering nine years of the sentence on two of the convictions to
run concurrently with the other, the trial court adequately provided for all of the
mitigating factors and the diminished responsibility it found proved. There is
no basis upon which this court is entitled to interfere.

________________
S SNYDERS
JUDGE OF APPEAL

APPEARANCES:
APPELLANTS:

M de la Harpe
Instructed by Legal Aid Board, Cape Town
Legal Aid Board, Bloemfontein

RESPONDENTS:

M O Julius
Instructed by The Director of Public Prosecutions,
Cape Town
The Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From: The Registrar, Supreme Court of Appeal
Date: 28 March 2011

Status: Immediate
Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

M VAN DER WESTHUIZEN v THE STATE

1.
In 2006 the appellant, Mr van der Westhuizen, a high ranking police officer, killed his
three children in the presence of his wife to punish her. He shot them with his service pistol
at the family home in Brackenfell, Cape Town. Hours later he tried to commit suicide, but
failed. As he shot the children he explained to his wife that he did so to make her suffer the
consequences of having chosen her work as a police woman above him. The choice that he
referred to was his perception of her attitude.

2.
His defence to the murders was that depression, anxiety and post traumatic stress
disorder from which he suffered as a result of the nature and extent of his police work and the
disintegration of his marriage, caused him not to be criminally responsible for what he did.
This defence failed in the Western Cape High Court and failed in the Supreme Court of
Appeal.

3.
The Supreme Court of Appeal confirmed the finding of the high court that, at best for
the appellant, his depression, anxiety and post traumatic stress disorder diminished his
criminal responsibility which, in turn, justified the imposition of a lesser sentence than that

prescribed by law. The effective sentence of 24 years' imprisonment was confirmed on
appeal.

4.
The judgment of the Supreme Court of Appeal includes various significant decisions
on criminal procedure. These include an interpretation of the requirement that a prosecutor
must act impartially. Essentially the Supreme Court of Appeal decided that this does not
mean that a prosecutor is obliged to play chess against him- or herself, ie call evidence which
is destructive of the State case; but a prosecutor must act fairly and dispassionately.

5.
The judgment also makes it clear, for the first time in relation to a criminal matter,
that when an accused makes a formal admission, that admission stands and cannot be
contradicted by an accused, whether by way of evidence or in argument, until there is an
honest explanation why the admission was made and why the accused wishes to resile from
it.

--ends--