The State v Albertyn

• Jurisdiction: South Africa
• Judge: CK Matshitse AJ
• Judgment Date: 19 December 2018
• Citation: 2019 JDR 0178 (GJ)
• Docket Number: 082/2017
• Court: Gauteng Local Division, Johannesburg

Matshitse AJ:

INTRODUCTION

[1].

The state alleges that Mr Moegamad Fadeel Albertyn, being accused before court, and here in after referred to as accused, and Miss Nicolette Claudia Abraham, the wife, were married to each other.

[2].

State farther alleges that during the subsistence of the marriage between the accused and his wife, accused had assaulted his wife. On the evening of the 13th March 2015 accused and his wife were at their residence and accused assaulted her and thereafter he reported her missing.

[3].

Upon investigations at their residence, Ms Nicolette Claudia Abrahams blood traces where found in one of the rooms and also on her tracksuit pants, pillowcase and also some screams were, heard by their neighbours, coming from their residence allegedly during the time accused was assaulting her. As a result, the state alleges that accused killed Nicolette Claudia Abrahams and thereafter disposed of or hide her body and since then she has been missing up to date.

[4].

Therefore, the state preferred the charges of Murder read with the provisions of section 51(1) and (2) of Act 105 of 1997 and defeating or obstructing the course of Justice against the accused.

[5].

The Court is dealing with the case of what is commonly known as No-body that is the body of Ms Nicolette Claudia Abrahams is missing up to date and cannot and be accounted.

[6].

A no-body case is difficult to prove, as the first burden is to prove that she is dead, not just missing, thereafter one has to prove—without a body for evidence—that she was murdered and in these circumstances the prosecution is to rely on other kinds of evidence, usually circumstantial evidence.

[7].

Murder consist of the unlawful and intentional killing of a human being (another person). The best way to prove a killing is with a dead body without

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the body that is always a chance the victim could turn up somewhere alive. In deciding the No-body cases most evidence of the death of the missing person can be found in one or more of the three categories of forensic evidence, like (1) blood found or (2) any confession or statement made to a friend who later tells on the accused (snitches), or (3) a confession made in accordance with the law and any other enough further evidence that the prosecution may have managed to present before court.

[8].

No-body murder cases are unique. Unique legally. Unique factually. Unique in their effect on the victim's family, friends, and loved ones. it is this uniqueness that poses a significant challenge for police and prosecution (investigating these cases) more difficult for the Presiding officer since he has to decide the case, if there is no direct evidence, because only evidence available will be circumstantial evidence. The victim's body remains the single most important piece of evidence in any murder case. Thus, even with the advance of forensic, no-body cases remain incredibly rare. Consider the amount of useful information a body provides. It can reveal the cause of death. Was the victim shot, stabbed, strangled or poisoned?

[9].

Today forensic pathologist can determine the length of a knife as well as the width and shape of its blade the marks left behind on several flesh and cut bone. Of course, of the best forensic clues, body fluids such as blood and semen used to conduct DNA of test, are not available when the body is gone. Evidence of bite marks, blunt force trauma, and even fingerprints are simply not available when a body is permanently disposed off.

[10].

No- body, however, often means no crime scene, and no crime scene means no tracking dog or crime scene reconstruction or search for trace of evidence. Thus, a murderer who can successfully disposed of a body is like a sprinter who starts a 100-meter race on the 20 m ahead of others; he gets a tremendous head start that can be almost insurmountable. Since the advantages of disposing of the best evidence of one's crime are so great, the list of ways murderers has disposed of their victim's is astonishing for its

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creativity. See the book of "No-Body Homicide Cases: A Practical Guide to Investigating, Prosecuting and Winning the Victim is Missing was published in November 2014. By Thomas A (Tad) Do Biase "No Body" Guy"

THE CHARGES

[11].

Mr Fadeel Moegamad Albertyn (Accused) is charged with: -

11.1

First count of murder, read with section 51(1) and (2) of Act 105 of 1997 in that upon or about the 13 March 2015 and at or near house number 07 Alma Court, Side Street, Chrisville, in the district of Johannesburg Central, accused did unlawfully and intentionally kill Nicolette Claudia Abrahams, an adult female person

11.2

Second count defeating or obstructing the administration of Justice in that or about the date and at near place mentioned in count 1, the accused unlawfully and with intent to defeat the course of justice hide the body of his wife Nicolette Claudia Abraham which defeated or obstructed the administration of justice.

11.3

Adv M T Ntlakaza appeared for the DPP and Ms L Qoqo appeared for Mr Albertyn. Mr Albertyn pleaded not guilty to both counts. He exercised his right to remain silent and gave no plea explanation.

ADMISSIONS

[12]

No admissions where made on behalf of the accused.

ISSUES IN DISPUTE

[13].

The sole issue for determination by this court is did accused kill his wife, Ms Nicolette Claudia Abrahams (hereinafter referred to as Nicolette) and disposed off her body or will his wife one day turn up, that is, return from

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wherever she is residing. It is noted She has been missing from 13 March 2015 to date

[14].

The only evidence that is before court is circumstantial evidence.

[15].

There is an overwhelming evidence that Nicolette is missing and probably dead but not much beyond that. What was she like? What did she like to do? What was her relationship with her family, more so her daughter, she had left behind, could she had stayed away from her up to date? What was her relationship between herself and the accused, how was their life together?

[16].

There is often so much focus on the accused and who the witnesses are, what and how they will testify on the stand, that the victim becomes uninvited guest to a party, not much is said about her/him, whereas she/he is the main guest of honour, the person why we are here in the first place.

[17].

In this case however the Court knew it was going to have to know more about Nicolette, if the State is going to prove she was indeed dead, it needs to show what she was like when she was living.

[18].

A body can potentially tell you. A skilled medical Examiner and not all are skilled, can measure the spread of powder deposits left on the skin (shoot and staple) to determine the distance between the barrel of a gun and the victim's body. Recovering a bullet or shell casing means a ballistic expert can identify not only the calibre of the weapon used but the exact weapon used if a gun is also recovered. Poisoning can be detected through advance toxicology tests. Was the victim, at any stage strangled? If so, contusions may appear on the neck. Minute bleeding in the eyelids, called petechial haemorrhaging, may be present.

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[19].

Killers have thrown bodies out of aeroplanes into the sea, pushed them off ships into the sea, and dumped them into canals. They have buried bodies deep in the woods, thrown them into landfills, and dump them on the ground where they are left to rot. Certain perpetrators have burned bodies in furnaces, in the victims on homes and or buried them in their own homes. They have sawed bodies apart, rip them apart with chain saws, ripped them apart with woodchoppers, and feed them to animals. Some perpetrators in order to eliminate their victims uses sulphuric acid, while the others may boil their victims in sausage plant. Dumpsters, and large bodies of water are perennial resting places for victims.

THE EVIDENCE FOR THE STATE

[20].

The first witness to be called on behalf of the State was Sergeant Wiseman Suta Nkuna who testified that he has 10 years' experience as a police officer of which 8 years he was attached to Local Crime Record Centre (LCRC) he is currently, based at Sandton. Previously he was based at Johannesburg LCRC. He had done some training among trainings that he had attended to was training on blood spatter, toxicology lifting of DNA evidence. On the 18 March 2015, he investigated the Flat where Nicolette and the accused were residing from which he compiled Exhibit "A", photo album. Inside the flat he found, amongst others, blood on the floor from an empty room. This blood shows that something was moved he lifted blood samples by using swabs. Photographs 8, 9, 10, 11 and 13 indeed resemble blood which was moved on the floor as opposed to droplets. He inserted them in a unique forensic bag 14DCA5191 and thereafter put them inside a sealed evidence bag with serial number PA4001915598.

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[21].

Blood droplets were also found on two pillows (cases) which were also taken in as exhibit. These are reflected in photographs 18, 19, 20, 21, 22 and 23. He then inserted both pillow case into two separate forensic bags with serial numbers PA 4000447610I and PA4000447609Q respectively.

[22].

Blood was also found on a pair of navy-blue track suite pants which were on top of ironing board. Photographs 24, 25, 26, 27, and 28 indeed reflect those pair of pants. He had inserted them inside forensic bag PA4000447612K thereafter he took them back to his office, wherein he then drafted a memo, covering minute, to send them to Forensic Laboratories at Pretoria. (FSL). The investigating officer, Constable Kubayi, then took them to FSL.

[23].

He acknowledged that during the time he was typing...