Koekie must be resentenced – SCA Goudina “Koekie” Botha was found guilty in December 2015 on a charge of murder and sentenced to 12 years’ imprisonment after her husband, a prominent Britstown farmer, was found dead on Sunday, July 11 2010.

THE SUPREME Court of Appeal has ruled that Goudina “Koekie” Botha, now 70 years old and destitute, must be resentenced.

In its judgment handed down this week, the court dismissed Botha’s appeal against her conviction but upheld the appeal against the sentence, ruling that the 12-year sentence imposed by the Northern Cape High Court be set aside and that the matter be remitted to the provincial court to impose a new sentence.

Botha was found guilty in December 2015 on a charge of murder and sentenced to 12 years’ imprisonment after her husband, a prominent Britstown farmer, was found dead on Sunday, July 11 2010.

The deceased, Pieter (Nico) Nicolaas Botha, had two gunshot wounds to the head, in what was initially believed to have been a suicide.

Botha appealed against both her conviction and sentence.

In summing up the background of the case, Acting Judge of Appeal, Yvonne Mbatha (Judge Fikile Mokgohloa concurring) pointed out that Koekie had been at the receiving end of her husband’s brutality, who was known for his aggression and cruelty, not only to his immediate family but also within the extended family and in the community of Britstown.

According to evidence presented in court, two days before he was found dead, Nico was in a terribly aggressive mood after learning of the loss of sheep, which had died after eating a poisonous plant in one of the camps under the control of his stepson, Pieter.

In his enraged state, the deceased almost ran Pieter down with the bakkie, while he also assaulted his wife.

When they returned around 6pm, Koekie complained to him that she would never drive with him again.

The deceased went berserk, hit her with a fist on her chest, slapped her on her face and when she fell down he kicked her to a point that she wet herself. In his fuming state that afternoon, the deceased had driven up to Casper Byleveldt, his daughter’s (Loudine) fiancee, forcing him against the wall with his bakkie. This incident unsettled Casper to the point that he considered leaving the farm with Loudine.

On the Saturday night, the deceased went to bed early after watching a rugby match. That was the last time that Loudine and Casper saw him alive. The next morning they received a call from Koekie that he had shot himself.

Koekie was later charged with murder.

Acting Judge of Appeal Mbatha pointed out that the State’s case was based on circumstantial evidence.

“The appellant went to bed with the deceased and the following morning he was dead. The appellant tested positive for the primer residue and the deceased did not, even though he had allegedly fired two shots to his head, in the process killing himself.”

Mbatha pointed out that Botha had gone to great lengths to cover her actions by inventing a story about gloves.

“The conclusion that one comes to is that the appellant’s version was false and in those circumstances it cannot reasonably be the truth. There are many improbabilities in her account coupled with the contradictory evidence regarding the gloves issue.

“Having considered the totality of the evidence, the probabilities and improbabilities, it is my view that her version is false. The trial court cannot be faulted for rejecting her version as well.”

With regard to sentence, however, Judge Mbatha stated that Koekie was sentenced on the basis that the murder was premeditated, which prescribes a minimum sentence of life imprisonment.

“The court a quo stated that this emanated from ‘inferential reasoning, supported by objective facts which, it was said, established that: the deceased was asleep when he was killed; that the appellant must have read the letter of wishes (as she had access to the keys of the safe); and that the killing of the deceased was motivated by greed as she wished to have control over the family finances.”

Judge Mbatha, however, stated that she did not agree with this conclusion as there was no evidence to support the argument that Koekie had armed herself with a firearm, planned to kill the deceased and that she had prior access to the letter of wishes.

“It is therefore clear that premeditation was not established and that the court a quo committed a material misdirection in this regard.

“The appellant should therefore have been sentenced in terms of S51(2) of the CLA (Criminal Law Amendment Act), which requires a minimum sentence of 15 years’ imprisonment in the absence of substantial and compelling circumstances warranting a reduction.”

She added that “in fact no one knows how the events of the night unfolded except the appellant”.

“The killing of the deceased could have been premeditated or not premeditated. That leaves this court at large to consider the sentence afresh and giving the benefit of the doubt to the appellant.

“A synopsis of the appellant’s emotional and physical state was completely disregarded by the court a quo (the Northern Cape High Court).

“The court a quo ignored the evidence of the abusive behaviour of the deceased towards her and other family members. Both the appellant’s sons testified of the prolonged abuse meted on the appellant by the deceased and related their own personal experiences of abuse at the deceased’s hands.

“The appellant is now 70 years old and alienated from most of her family. She ultimately had to leave the farm in January 2012, and, in February 2012, was admitted to a psychiatric ward in Kimberley and still remains under the care of a psychologist and a psychiatrist. Dr Panieri-Peter stated that she suffers from severe post- traumatic stress disorder, generalised anxiety and depression. Since she left the farm, Loudine has never visited her. She has virtually no assets.

“The death of the deceased led to the breakdown of the relationships between her and her daughters. As the conviction has been confirmed by this Court she will be destitute as she may not be entitled to any inheritance under the deceased’s will and will have no source of income.

“The appellant certainly does not fall within the category of persons who need to be removed from society. Imprisonment could, and probably would, have a devastating effect on her, particularly taking into consideration that over a period of 30 years she was subjected to assault and abuse by the deceased.”

Acting Court of Appeal Judge Owen Rogers, however, dissented, stating that in his view Koekie’s appeal against her conviction should succeed. “I consider that the court acted irregularly in allowing the State to reopen its case.”

He pointed out that Koekie and Nico were married in January 1976. “This was the deceased’s first marriage and the appellant’s second. She had two sons from her previous marriage, Pieter and Nannie van Zyl. From the marriage between the appellant and the deceased three children were born: LoAmi, Loudine and Phillip. LoAmi relocated permanently to the United States in 1999.

“The evidence revealed that Nico was a domineering and manipulative man who was cruel, emotionally and physically, to his family and workers. While he could be charming to outsiders, he was prone to fly into terrible rages. He had to have his own way and would never admit to being in the wrong. He was an unrelentingly hard worker and expected his wife, stepsons and sons to follow his lead for meagre remuneration and little appreciation.

“The deceased wanted his sons and stepsons to be involved in his farming empire but strictly on his own terms. As boys Nannie and Pieter suffered considerable cruelty at his hands. He was often abusive to them and after one such incident in 2003, when Nico told Nannie that he was useless and should get off the farm, the latter packed his things that very night, left Kareehoek and never had anything more to do with his stepfather.

“Nico’s son, Phillip, was very much the apple of his eye, took up residence at Kareehoek in 2004. He married his wife, Zane, that year. Following the birth of their first child in April 2008, Zane developed severe postnatal depression and required hospitalisation in Bloemfontein. Nico’s attitude was that it was all in her head and she should get over it. He resented any time Phillip took off to be with his wife.

“Matters came to a head later that month after Phillip returned to the farm from Bloemfontein. Nico verbally abused Phillip, assaulted him and threw rocks at his car when he tried to drive away. Phillip put his packed bag back into the car, drove off and never spoke with his father again.

“Although the deceased was the cause of it, Phillip’s departure was a huge emotional shock to him. He was often tearful and spoke of killing himself. About a month after Phillip’s departure the deceased was sitting in his study, the gun safe open and a rifle on his lap, weeping inconsolably.”