Republic  of  South Africa

REPORTABLE

IN THE HIGH  COURT  OF  SOUTH  AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

							CASE No:	SS 70/2007

In the matter of

THE  STATE

versus

THEUNIS  CHRISTIAAN  OLIVIER

_______________________________________________________________________

JUDGMENT  DELIVERED  :  31  JULY  2007
________________________________________________________________________

MOOSA, J:

1.	The accused is charged with one count of kidnapping, one count of indecent assault and one count of murder.  The State alleges that during 23 and 24 December 2005 and at Stableford Road, Plettenberg Bay, the accused kidnapped Steven Hans Siebert, indecently assaulted and then murdered him.

2.	Before the charges were put to the accused, Adv Badenhorst, then appearing for the State, informed the court that the accused had been referred to Valkenberg Hospital for observation in terms of S 79(2) of the Criminal Procedure Act, No 51 of 1977 (“the Act”).

3.	Prof Kaliski and Dr Panieri-Peter, reported on the outcome of the observation in terms of S 79(4) of the Act. They found that the accused was, firstly, not mentally ill in terms of S 79(4)(b) and not certifiable in terms of the Mental Health Act .  Secondly, that in terms of S 79(4)(c) he is fit to stand trial as stipulated by S 77(1) and, thirdly, that in terms of S 79(4)(d) he was able to appreciate the wrongfulness of the alleged offences and act accordingly as stipulated in S 78(1).  Dr Czech that was also appointed to the panel, made similar findings.  Their respective reports are EXHIBITS A and B.

4.	Adv Benadé who appeared on behalf of the accused, indicated that the defence is not challenging the findings of the psychiatrists that the accused is fit to stand trial, however, the defence is challenging the findings of the psychiatrists that the accused “was able to appreciate the wrongfulness of the alleged offences and act accordingly”.  The defence indicated that they were endeavouring to secure the services of a private psychiatrist/psychologist  to make a further assessment of the accused in connection with regard to his criminal responsibility.

5.	The court ruled that the accused was fit to stand trial and requested the State to put the charges to the accused.  After the charges were put to the accused, he pleaded not guilty to the charges and added that he did so in terms of S 78(1)(b).  He essentially averred that at the time he committed the offences he suffered from a mental illness or defect that prevented him from appreciating that his conduct or action was wrongful.  Adv Benadé confirmed the accused’ plea and indicated that the accused exercises his right to remain silent

6.	Save for the evidence of the psychiatrist/psychologist, most of the evidence tendered by the State was either common cause or undisputed.  The facts are briefly as follows:
(a)	The deceased, Steven Hans Siebert (“Steven”) aged 6 years, was holidaying with his family in Plettenberg Bay during the festive season of December 2005.  They were staying at 20 Stableford Road, Plettenberg Bay.  On 23 December 2005, at approximately 18:30 after supper, Steven was playing in and around the holiday home.  The father, Mr Thomas Siebert (“Mr Siebert”) saw him through the window of the house just before he went to shower.  The mother, Mrs Etrechia Elaine Siebert (“Mrs Siebert”), while attending to Steven’s younger brother, saw Steven through the window, playing outside the house.  After Mr Siebert had showered, he went looking for Steven, but could not find him.
(b)	A search was launched for Steven.  Neighbours joined in the search.  The police were informed and the search was intensified.  The police, with the help of members of the community, conducted a co-ordinated search for Steven.  The following day, at approximately 09:45, a member of the search team, Mr William Bosman (“Mr Bosman”) found the body of Steven laying in bushes located near the dwelling of 13 Cordovan Street, Plettenberg Bay.  The accused was staying at the address while he assisted with the renovation of the house.
(c)	A post-mortem examination was conducted by Dr Van der Heyde.  She found extensive bruising, abrasions, scratch marks and haemorrhaging, ligature abrasions around the neck and a gaping anus.  Dr Van der Heyde testified that the gaping anus was suggestive of forceful penetration.  It is consistent with anal sexual intercourse while the child was still alive.  She testified further that a gaping anus is seen in acute cases of abuse and is highly suggestive of sodomy.  The experience would have been devastating to the child.
(d)	The ligature abrasions and scratch marks around the neck were consistent with strangulation, caused by an object like a telephone cord and the use of fingers.  She ascribed the cause of death to a combination of strangulation and pressure on the neck.  She testified that such pressure interferes with the flow of blood from the brain to the heart and the supply of oxygen to the lungs, with its attendant consequences.  These factors can result in unconsciousness and eventually death.  The child, in her opinion, could have survived for a period of two to three minutes.  The post-mortem report was handed in as EXHIBIT C.  The defence admitted the facts and findings contained in EXHIBIT C in terms of S 220 of the Act.
(e)	On 24 December 2005, the accused was arrested.  His rights were explained to him and he signed EXHIBIT J which is a notice of rights in terms of the Constitution.  The accused indicated that he wanted to make a statement before a Magistrate.  The accused made a confession before chief Magistrate Strydom on 25 December 2005.  Such confession was mechanically recorded and it was subsequently transcribed.  The typed version was presented to the accused on 27 December 2005 for signature.  After amending the statement, he confirmed the correctness thereof and signed the typed statement.  It was handed in as EXHIBIT L.  He confirmed that his correct surname is Olivier.
(f)	In his confession, the accused said that on Friday, 23rd December 2005, between 17:00 and 18:30, he saw a young child playing in a tree in the front garden of 20 Stableford Road, Plettenberg Bay.  He approached the child, who was six years old and whose name was Steven.  He attempted to persuade Steven to come to his home, that was not far away, to climb the trees.  Steven agreed.  Accused picked him up and carried him via a shortcut, through the bushes so that they are not seen by any eye witnesses.  He took Steven to his home where he sexually abused him in the bedroom for 10 to 15 minutes.  He thereafter strangled him to death.  He placed the body in a cupboard.  He thereafter showered and shaved off his beard.  Certain people knocked at his door to enquire whether he had seen a small child.  He said no, but volunteered to get dressed and assist in looking for the missing boy.  He took the body from the cupboard and hid it in some bushes on the other side of the garage.
(g)	In his confession he says further, inter alia, that he does not know why he did it.  As from the time he strangled “that innocent” child to death with a cord from a telephone, until this time, he has cried bitterly for that child.  He says further that he had violated the laws and pleads guilty to this crime.  He admitted that the reason he strangled Steven was to kill him.  When asked by the Magistrate why he wanted to kill the child, he replied “It was a very difficult decision, but I came to the conclusion that if I did not kill him, he would be a witness against me in a court of law”.
(h)	In a letter addressed to “The Editor”, the accused addresses an open letter to “The Siebert Family, the World and to all those who knew Steven Siebert”.  In this letter he makes the following admission:
“I openly, albeit ashamably, and confess, that I did on my own (sic) free will, and unlawfully (sic) sexually molest and murder little Steven on the 23rd of December 2005 in Plettenberg Bay South Africa … It was an act in which I robbed little steven (sic) of his love, his innocentce (sic), his purity, an act in which I robbed him of his little private boddy (sic) and worse, an act in which I robbed him of his life – his right to live.”
(i)	The Defence, in terms of S 220 of the Act, admitted that during the post-mortem examination, hair of the deceased was removed from the back of his head and/or neck and sent for forensic testing.  The Defence further admitted that the white paint that was found on the hair of the deceased and on the telephone cable (EXHIBIT 1) that was confiscated from the room in which the accused was sleeping at 13 Cordovan Street, Plettenberg Bay, was tested and had similar chemical class properties.  In that regard the Defence admitted that it came from the same source.  The Defence further admitted that the three specimens of hair confiscated by Superintendent Lötze from the pants, buttocks and neck of the deceased, belonged to the accused.

7.	Before the State closed its case, the Defence changed its plea of not guilty to one of guilty to all the counts and submitted a statement in terms of S 112(2) of the Act.  The State accepted the plea of guilty in terms of such statement.  The court raised certain procedural issues and requested counsel to address the court on such issues.  The court is grateful for their input.

8.	In S v Abrahams en Andere  1980 (4) SA 666 (C) the court held that it was generally accepted that an accused could at any stage of the trial change his plea of not guilty to one of guilty.  It held further that S 112 of the Act contained no indication that it was only of application to the plea of guilty which was tendered before the trial commenced;  the provisions of the Section applied just as much when an accused changed his plea to one of guilty during the course of the case.  (In this regard see the Headnotes of the case.)

9.	Smalberger, JA in S v Sethoga and Others 1990 (1) SA 270 (A) at 275B, in approving the decision in S v Abrahams (supra), said that S 112 of the Act applies not only where a plea of guilty is tendered before the commencement of a trial, but also when an accused changes his plea to one of guilty during the course of the trial.  I am therefore satisfied that the procedure adopted in this matter, where the plea of not guilty was changed to one of guilty in terms of S 112, was a competent procedure.  The court is further satisfied that the facts admitted by the accused in the S 112(2) statement are not inconsistent with the evidence already tendered by the State.  Such statement is accordingly accepted by the court.  In view of the court’s finding, it is not necessary to make a formal finding in respect of the procedure that could have been adopted in terms of S 220 of the Act.  

10.	In my view the evidence tendered by the State forms part of the record of these proceedings.  (In S v Mokhobo 1989 (1) SA 939 (A) at 943, the accused initially pleaded not guilty to two charges of murder, but after medical evidence of the cause of death of the two deceased was led, the accused altered his plea on both counts to one of guilty.  This was accompanied by a written statement in terms of S 112(2).  The State accepted the plea of guilty and closed its case.  The court, on the strength of the admissions contained in the accused’ S 112(2) statement and the medical evidence, convicted the accused.  Implicit in that finding, the court, in convicting the accused, relied not only on the admissions contained in the S 112(2) statement, but also on the evidence presented in the trial prior to the change of plea.  I therefore rule that the evidence tendered by the State prior to the change of plea, constitutes evidence in these proceedings.

11.	The court is satisfied that the accused has admitted all the allegations contained in the charge sheet in respect of the three charges to which he pleaded guilty.  The court is further satisfied that all the elements of the three charges have been established and, more particularly, the criminal responsibility of the accused that was put in issue by the Defence at the commencement of the trial.  The accused is accordingly found guilty as charged.

…………………………..
         E MOOSA