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LONDON — Last month we carried Rian Malan’s quite brilliant account of the high profile trial in Coligny where two Afrikaner farmers were sentenced to long jail terms for the murder of a lad they’d found stealing sunflower seeds. The repugnancy of the crime and outraged reaction of the local community turned it into a global news event. But, as the bestselling author and respected journalist Malan has skilfully unpacked for us, the verdict left many unanswered questions. As I wrote at the time, there appear to be stark parallels with the famous racially-influenced miss-trial featured in the American classic To Kill A Mockingbird. In the second part of Politicsweb’s three part analysis of the trial, Gabriel Crouse takes a deep dive into what the port mortem tells us. In what reads like an episode of Silent Witness, he points out some very obvious issues that somehow escaped the attention of the court. With the kind permission of Politicsweb, we’ll publish part three tomorrow. – Alec Hogg
By Gabriel Crouse*
It is 9.43 am on Thursday, 20 April 2017, at the bend of a country road. A teenager, Matlhomola Jonas Moshoeu, is lying injured on the ground. He is wearing a blue T-shirt, black sleeveless “Active Vibes” hoodie, grey trousers, and black Adidas takkies. Blood is oozing from his mouth and nose, the right side of his face is against the graded earth, so is his torso; he is in the “prayer position”, his arms stretched out in front of him. The first police officer on the scene finds him lying on the ground, struggling to breathe, and surrounded by a pool of blood. Friends call him “Faki” and he will die from his injuries within a couple of hours, being certified dead at 11:29am.
Judge Ronald Hendricks of the North West High Court found that Moshoeu was murdered dolus eventualis by Pieter Doorewaard and Philip Schutte, and sentenced them to 18 and 23 years in jail respectively. Hendricks dismissed the claim by the Coligny or Sunflower Killers – as they are now referred to in the media – that Moshoeu had jumped (or possibly fallen) from their Ford Ranger bakkie as they slowed down, approaching a bend in the road while on their way to the Coligny police station to report the 16-year-old for stealing sunflower heads. This was at about 9.40am that morning. It is common cause that Doorewaard and Schutte asked two local passers-by to stand with Moshoeu on the road while they drove to the police station 1.8km away to summon help, where they identified themselves, explained what had happened, and also left their contact details. This was at around quarter to ten that morning.
Instead, Hendricks accepted the evidence of the state’s sole witness, Bendel Pakisi, who testified that Moshoeu’s fatal injuries had been incurred some two-and-a-half hours earlier, when Schutte had deliberately thrown Moshoeu off the back of a moving bakkie, driven over rough ground by Doorewaard. The imputed motive was punishment for the theft. While Moshoeu had lain incapacitated and bleeding in the back of the bakkie, Schutte and Doorewaard, along with a still unidentified third man, had taken Pakisi on a hell ride through the countryside around Coligny, before knocking him out and abandoning him near a local dam, then driving back, throwing Moshoeu onto the road, and rushing off to the police station.
Rian Malan has set out the numerous problems with the state’s case in his article here, particularly the reliance on a sole witness who changed his version numerous times, the existence of clear exculpatory evidence, and the absence of corroborating evidence for Pakisi’s story. In his judgment, Judge Hendricks nonetheless found Pakisi had not contradicted himself in any “material” respect. He also found crucial corroboration of Pakisi’s version in the evidence of the state forensic pathologist, Dr. Ruweida Moorad. As Hendricks wrote: “Mr Pakisi testified that the deceased was thrown from the van. This evidence is supported by the evidence of Dr Moorad.”
What follows is the promised deep dive into the evidence of Dr Moorad, and an evaluation of whether it supports the weight that the prosecution and Judge Hendricks placed upon it.
The first autopsy was conducted in Lichtenburg on the morning of Monday 24 April 2017 by Dr M S Letabile, while the matter was still being investigated by Warrant Officer Seponkane of the Coligny police. The report of Dr Letabile found Moshoeu’s injuries “consistent with falling head first to the ground at high velocity”. That same morning, Brigadier Cliford Kgorane arrived from Potchefstroom and took command of the investigation and, after hearing Pakisi’s account, decided that this was a murder case. He ordered a second autopsy, conducted by Dr Moorad, and this was performed at the Department of Health’s Medico-Legal Laboratory, Potchefstroom, on the morning of 28 April 2017. Her autopsy report was produced on the 12 May.
According to this report Moshoeu’s external injuries included (inter alia):
A (probably) graze abrasion from the “midline of the forehead, across the right side, around the right eye and extending to the right cheek” covering an area of 15cm by 13cm. The right eye was also bruised and swollen.
- A number of smaller oval abrasions, with bruising, on the left side of the face.
- A graze abrasion of the inner side of the right forearm covering an area of 18cm by 3cm.
- An abrasion of 3cm by 2cm on the right armpit.
- Abrasions on the left upper back near the shoulder; a deep abrasion above the hip on the right (8cm by 4.5cm); and abrasions on both knees.
- The only fracture recorded was an extension fracture of the neck; the spinal cord was not examined, however.
Later that same month, Pakisi deposed a (second) statement claiming that on the morning in question he had first heard Mosheou screaming “Mother, help me, I am dying” in the sunflower field, then seen Schutte “climb at the back of the van and I saw him grabbing the boy at the back of the van and threw him to the ground.” This brutal act of throwing the teenager off a moving bakkie had been repeated two further times, he said.
A few months later, a meeting was held in Potchefstroom between Brigadier Kgorane, the prosecutors on the case, and Dr Moorad, where she was taken through her autopsy findings, and asked whether she could testify as to whether the autopsy results supported Pakisi’s version. She was then asked by the investigating officer, Lt. Col. Nkosi, to put what was discussed into an affidavit. This was done on 22 September 2017. In this document, Dr Moorad noted the injuries mentioned above before drawing her conclusions from injuries that were absent: Moshoeu’s palms and hands were undamaged, with no fractures of the wrists. She wrote that while these injuries “are consistent with injuries due to a fall or jump from a moving vehicle,” there were other factors to consider:
“In my opinion, it is more probable that the deceased fell from the vehicle, as the protective, defensive types of injuries were not noted during the autopsies. These protective mechanisms would include injuries to the outstretched hands/limbs e.g. abrasions to the palms, fractures of the wrist/forearm, referred to as the protective extension reflex which protects the head. It is not possible, from the injuries, to state with certainty whether the deceased jumped off the vehicle (intentional) or fell from the vehicle (unintentional), however the injuries to the front of the face and absence of more injuries to the forearms and hands suggests that the deceased fell off the vehicle.”
This particular evidence would be central to the prosecution’s case, as well as the guilty verdict.
In order to understand and assess the point being made here, some basic background knowledge is necessary. When a person accidentally trips, falls, or slips, the instinctive and automatic response is to extend one’s arms and hands in order to break the impact with the ground. This so-called “parachute” or “protective extension” reflex develops in infants several months after birth, but before they start learning to walk. The evolutionary purpose is to protect the head of the child from hitting the ground when they fall, as they will often do in this stage of development. Unlike many other primitive reflexes, this persists throughout life.
It is however not the best way for much taller and heavier adults to fall in that it can lead to injuries of the hands and wrists. Such injuries are very common and are known as Foosh injuries, an acronym for “fall on outstretched hand”. This defensive reflex can be consciously overridden if the fall is deliberate or anticipated, or through training and practice (as in martial arts, rugby, or parachuting). The standard advice is, firstly, to protect your head as the absolute priority; but secondly, to preferably not do so by using outstretched hands. The optimal way for a grown person to fall, as explained here, is to:
“Tuck your chin in, turn your head, and throw an arm up. It is better-to land on your arm than on your head. While falling, twist or roll your body to the side. It is better to land on your buttocks and side than on your back. Keep your wrists, elbows and knees bent. Do not try to break the fall with your hands or elbows. When falling, the objective is to have as many square inches of your body contact the surface as possible, thus, spreading out the impact of the fall.”
This advice is intuitive enough. If you fall accidentally you may panic and stick out your arms as a reflex. But if you anticipate the fall you are likely to brace yourself and try and protect both your head and your wrists and arms from injury.
Dr Moorad was the first witness to give evidence, right at the start of the trial on 20 March 2018. Led by the prosecutor, she went over her 22 September 2017 affidavit and repeated her point that it was significant that while there were extensive abrasions to both sides of the face, there were no such injuries on the palms and hands. She commented:
“In my opinion a conscious decision to jump from something or off something would lead to automatic landing on hands and knees in an attempt to protect the head and the face… And these are referred to as the protective extensive reflexes so it is a natural primitive reflex that human beings have to protect vital organs such as the head in a conscious decision to jump which is why I concluded that it is more probable that the deceased in my opinion fell from the vehicle which was an unexpected or unconscious non-intentional fall from the vehicle where he did not have time to utilise his protective reflexes.”
Dr Moorad’s initial opinion, from a purely layman’s point of view, appears to be based upon certain doubtful premises. The first is that while an accidental fall from standing height – say as the result of tripping, slipping or being pushed – does commonly allow sufficient time for the primitive defensive reflex to kick in, the same cannot be said for the fall from a bakkie. This cannot be true. The load bed of a Ford Ranger is 80cm above ground and it takes an object an additional 0.4 seconds to fall that distance. The second, following from this, is that injury patterns consistent with the “primitive defensive” reflex are more likely to be produced by intended rather than unexpected falls from a bakkie.
Both of these points were canvassed by the counsel for Doorewaard and Schutte in the cross-examination of Dr Moorad.
Would a throw off a bakkie really rob Moshoeu of the time to protect himself?
The defence used Newtonian principles and legally established precedent to calculate one half of the timing equation – the hang time of a body leaving a bakkie travelling at 60km/h. The other half of the equation is the reaction time. Is the “natural reflex” fast enough for someone to get their hands out even if they only realize they are going to hit the ground after they’ve left the bakkie?
Dr Moorad responded: Okay. Okay, so you are asking me if it is enough time, three quarters of a second to one and a half seconds, is that enough time to…
Defence: For the primitive reflex, as you call it, to kick in and protect yourself.
Dr Moorad: I would imagine so, yes.
In a further exchange, the defence counsel asked: So we would expect the very same injuries then, for example, to palms of hands and forearms when a person is thrown from a moving motor vehicle if that [the defensive reflex] can happen so quickly?
Dr Moorad: May I respond by saying, if the deceased anticipated the fall or jump then he or she, he would have put his hand out or she would have been expected to use some sort of protective extension reflex to protect himself. That is all I can state about it. I am not familiar with reaction times, or whatever else it is that you are putting to me, but if he anticipated and had time to anticipate he would have used his primitive reflexes or extension to protect the head possible cut here.
In short, Dr Moorad had to revise her original reasoning – that “it is more probable that the deceased in my opinion fell from the vehicle” unexpectedly because “he did not have time to utilise his protective reflexes” – by admitting that she was not an expert on “reaction times” and by conceding that she would “imagine” that the deceased would have had enough hang time in the air to extend his hands and arms.
Under cross-examination, Dr Moorad also had to acknowledge that while it was only human to try and protect one’s head there was more than one way to do so, contra the position implied by her September affidavit.
She was asked by the defence: Okay, will you agree with me that instead of stretching out my hands it will also qualify as a protective measure if I close my head? Closing the head means wrapping an arm around it rather than extending the hands out ahead.
Dr. Moorad: Yes, that would qualify.
The defence counsel then took Dr Moorad through the autopsy report, noting first the absence of injuries to the stomach, except on the right side above the hip. Dr Moorad acknowledged this was consistent with a person lifting their legs up to their stomach. The defence also pointed out the long graze on the inner aspect of the right arm, the absence of injuries from the right ear up to the centre part of the head, and the abrasion on the inner upper arm near the right armpit (axilla). Dr Moorad agreed to the proposition that one could only sustain injuries or abrasions to that part of the axilla when the right arm was lifted up.
The following scenario was then put to Dr. Moorad. In it a person jumps off the side of a bakkie landing feet on the ground. Through the air, that person’s momentum would be in the direction the vehicle was moving in, at 60km/h, and in the forward direction of the jump. The person lands on the feet, but, carried by the momentum, rolls forward diagonally with the head tucked into the crook of one elbow; one ear to the bicep; the other ear to the wrist; chin tucked to chest; the other arm tucked into the torso. No palms out. This is a tight, tucked roll, seen in almost all actions films.
Dr Moorad: Okay. If I understand your question correctly, you are posing a scenario to me that accounts for all of the injuries that accounts to the post-mortem.
No, not all of the injuries, she was told, but “most” of them? A qualified “yes” followed: I think that perhaps it might be better to state that it is a possibility.
Two reasons why this made sense were the injuries to Moshoeu’s knees, which would hit after the feet early in the roll, and the big injury to Moshoeu’s inner upper-arm near the armpit, which would be consistent with “closing his head” with his arm and landing on it in the diagonal roll. All the other injuries fit as well.
Dr Moorad’s qualification was again due to missing injuries she would usually expect after a tuck-roll. In particular, she would expect scratches on the back, but she did not see such. When it was drawn to her attention that Moshoeu was wearing a T-shirt and thickish sleeveless “Active Vibes” hoodie at the time of the incident, she responded like this:
Moorad: I’m saying if the body surface is covered in clothing it could have an effect on the lack of injuries that one sees.
Defence: So can we agree, Doctor, when you said you expected more such injuries when [the tuck-roll scenario was] put to you…the deceased rolled, the clothing could have had an influence on that?
Moorad: It could have, yes.
To recap, the more sophisticated way to fall, the tuck-roll, had not been on Moorad’s radar at the start, for whatever reason. But under cross-examination the tuck-roll was brought to her attention and eventually she affirmed that it was entirely consistent with the injuries recorded, corroborating the accused’s version of a jump, even on the balance of probabilities.
One residual explanation for the absence of injuries on Moshoeu’s hands would be if he had been incapacitated or had had his hands tied at the time that he was allegedly thrown from the bakkie.
In his testimony in early June 2018, Pakisi revised down the times he had said he had seen Moshoeu thrown from three to one. He provided a vivid description to the court of seeing the teenager being thrown off the back of a moving bakkie by Schutte, all at the distance of seven to eight paces. He described this to Hendricks in court:
First the grip.
Judge Hendricks: [Pakisi] demonstrates with his right hand at the back of the neck. With the other hand on the side of the pants where the belt is, holding onto the belt.
The judge narrated Pakisi’s gesture for the record. Notice that Moshoeu’s hands were unobstructed. Pakisi was repeatedly asked about this and answered consistently, Moshoeu’s hands were not held or bound.
After the grip came the throw.
Defence: Okay, you specifically referred to seeing the child going through the air….. In this motion, as the child was thrown flying through the air, was he facing downwards, or upwards?
Pakisi: When he was going in the air and going to fall, this side [the left side of the face] was facing down.
Defence: Okay, and where was the child’s hands when he was flying through the air, being thrown off the van?
Pakisi: In the air.
Again, Hendricks described the accompanying gesture for the record: The witness indicates with both his hands raised next to his head.
There it is. Pakisi’s testimony to Hendricks is that he saw Moshoeu falling the way you would expect with the defensive extension reflex at work. Hands “raised next to his head”, sure to be grazed either on the palm or fist side when they hit the ground first in an attempt to protect the head from injury.
In his final address to the court, Adv Molefe, for the prosecution, submitted that Pakisi’s evidence regarding the manner in which Moshoeu was thrown from the bakkie was “supported by the evidence of Dr Moorad.” She had concluded in her September 2017 affidavit, he said, that the “absence of more injuries to the forearms and hands suggested that the deceased fell off the van unintentionally. This is a material corroboration of Pakisi’s evidence that the deceased was thrown from the van. It must be noted that this was an independent and expert conclusion.”
In his response, Adv Du Plessis submitted that Pakisi’s testimony before the court in June 2018 had actually drawn “a straight line through the probability findings of Dr Moorad,” this on the grounds that Pakisi claimed to have seen the child moving through the air with his hands stretched out above his head to break his fall – a classic illustration of the “primitive” defensive reflex. If Dr Moorad had stayed on in court to watch Pakisi’s demonstration, she would have had to concede that such a fall could not account for the perplexing absence of injuries to the wrists and hands observed during her autopsy. In other words, her evidence would have refuted rather than corroborated Pakisi’s version.
Adv Du Plessis also noted that Dr Moorad made a number of concessions that were favourable to the accused’s version. She admitted, for instance, that the injuries were consistent with the deceased jumping off the van and lifting up his arm to protect his head. Taken as a whole, he argued, Dr Moorad’s evidence was neither corroboration for Pakisi’s version nor proof beyond reasonable doubt. He highlighted in this regard Moorad’s earlier comment under cross examination that “I maintain that it is difficult to state with any certainty that the injuries occurred either as a fall off the bakkie or a jump off the bakkie. They are all blunt force trauma and consistent with a motor vehicle collision.”
In his judgment Judge Hendricks quoted the conclusion of Dr Moorad’s September 2017 affidavit at length, although omitting her observation that the injuries recorded in the autopsies “are consistent with injuries due to a fall or jump from a moving vehicle”: He then summarised Dr Moorad’s view as follows: “According to her the deceased fell from the vehicle as he did not have time to prepare for the fall. It is more probable that he fell rather than jumped from the motor vehicle.”
He rejected the significance of all the concessions extracted by the defence counsel from Dr Moorad under cross examination “as more speculative than anything else. She was steadfast that primitive reflexes as protective measures not be injured on the head was absent [sic]”. After summarising Adv Molefe’s closing arguments on this issue and others Judge Hendricks declared: “I am in full agreement with these contentions by Mr Molefe.”
Pakisi’s evidence had thus, in Judge Hendricks’ mind, been materially corroborated by Dr Moorad. Schutte and Dooreward were thus guilty of murder, and should now spend the next ten to twenty years of their lives in a South African prison for their despicable crimes.
Enrobed by the state’s monopoly on legitimate force, Judge Hendriks had had to ask himself: what does the forensic evidence fit, and what does it fit best?
His conclusion required ignoring the reasonable doubt cast by the fact that the injuries present were consistent with a jump. It meant accepting that the deceased had too little hang time to protect his own head, even though the fall was from a raised elevation; and omitting mention of Dr Moorad’s concession that the injuries were consistent with Moshoeu using his upper arm, rather than his hands, to protect his head.
Finally, it required turning a blind eye to the fact that the description given by Pakisi of the alleged throw, in his testimony in June 2018, had delivered the final coup de grâce to Dr Moorad’s initial opinion on the probabilities.
- Gabriel Crouse is the George F D Palmer Financial Journalist Trust Fellow at the Institute of Race Relations (IRR), a liberal think tank that promotes political and economic freedom. Readers are invited to take a stand with the IRR by sending an SMS to 32823 (SMSes cost R1, Ts and Cs apply).
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