S v Rohde

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Saldulker JA, Van der Merwe JA, Mocumie JA, Mokgohloa JA and Potterill AJA
• Judgment Date: 05 October 2021
• Court: Supreme Court of Appeal
• Hearing Date: 16 August 2021
• Counsel: F van Zyl SC (with WA King SC) for the appellant. LJ van Niekerk for the state.
• Citation: 2021 (2) SACR 565 (SCA)

Saldulker JA and Van der Merwe JA (Mocumie JA, Mokgohloa JA and Potterrill AJA concurring):

Introduction

[1] Over the weekend of Friday 22 July 2016 to Sunday 24 July 2016 a well-known real-estate company held its annual conference at the Spier Hotel near Stellenbosch in the Western Cape. Mr Jason Thomas Rohde, the chief executive officer of the company, attended the conference. His wife, Ms Susan Francis Rohde, accompanied him to the venue and attended the social events associated with the conference. During the morning of 24 July 2016, however, Ms Rohde (the deceased) was found dead in the bathroom of their suite at the hotel. This was shocking news, all the more so because the deceased was only 47 years of age; the caring mother of three adolescent daughters; in excellent health and a strong-willed and tenacious person.

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

Saldulker JA and Van der Merwe JA (Mocumie JA, Mokgohloa JA and Potterrill AJA concurring)

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

Background

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

Evidence concerning the deceased's mental state

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

[6] The deceased said that the appellant was frustrated about her anxieties and was irritated at her constantly talking about the affair. The deceased wanted to repair the relationship with the appellant, but found it difficult

Saldulker JA and Van der Merwe JA (Mocumie JA, Mokgohloa JA and Potterrill AJA concurring)

to manage the anger and the turmoil that she felt. She said that the affair had turned her life upside down. The deceased feared that she and the appellant would continue to treat each other badly, that she would continue to live in fear and that her family would be exposed to the tension at home. Their marital relationship had been loving, but became distant.

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

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

[9] In the last session with Ms Newcombe there was a discussion to the effect that if she discovered that the affair was still ongoing, the deceased planned to leave the conference and go to her sister who resided in Cape Town. On the Friday evening of the conference, the deceased called her from the Spier Hotel and told her that she had been complimented at the conference for being beautiful and that she had no reason to feel threatened by younger women. Ms Newcombe considered that the deceased was distressed, anxious, but not depressed. They had discussed that the deceased had nothing to be ashamed about and was entitled to be there. During the conversation between her and the deceased, which lasted about 10 minutes, the deceased came across as being in control and ready to engage in the activities of the evening at the hotel. Later that same evening, she received a message from the deceased that said that she had greeted Ms Alterskye and that she wished she never had to meet her again.

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

[11] Ms Nader was a marriage counsellor to the appellant and the deceased. They had engaged her in marriage-counselling sessions with a view to restoring their marriage relationship. Their marriage had taken strain as a result of the appellant's extramarital affair. Her early impressions of the behaviour of the deceased during the sessions concerned her, and she referred the deceased for onward psychological and medical intervention. Despite Ms Nader's advice not to do so, the deceased

Saldulker JA and Van der Merwe JA (Mocumie JA, Mokgohloa JA and Potterrill AJA concurring)

insisted on attending the upcoming conference at Spier. This took place during their last session on 20 July 2016. She was informed by the appellant on 27 July 2016 that the deceased had committed suicide.

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

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