- Susan Rohde was found dead in a Stellenbosch hotel bathroom in July 2016: the State maintains her husband was rightly convicted of murdering her, while he insists she killed herself.
- Jason Rohde has convinced the SCA to hear his challenge of his murder conviction, after Western Cape High Court Judge Gayaat Salie-Hlophe refused him leave to appeal.
- Rohde is being represented by top criminal Advocate Francois van Zyl SC, who successfully defended British businessman Shrien Dewani against charges that he had orchestrated a hit on his new bride Anni.
It’s been over four years since Susan Rohde’s lifeless body was discovered in the bathroom of a luxurious Stellenbosch hotel room – but, as her husband attempts to overturn his conviction for her murder, questions continue to surround how and why she died.
As papers filed at the Supreme Court of Appeal (SCA) reveal, many of those questions are now focused on the State’s forensic investigation of the 46-year-old mother-of-three’s death, and whether it was irretrievably bungled.
Former Lew Geffen Sotheby’s CEO Jason Rohde remains adamant that his wife hanged herself with the cord of her hair curling iron after discovering that his affair with estate agent Jolene Alterskye was not over. But the National Prosecuting Authority (NPA) says Rohde’s account of Susan’s death is nothing more than a desperate attempt to evade responsibility for assaulting, strangling, and asphyxiating her.
Rohde’s case is being argued by Francois van Zyl SC, one of South Africa’s top criminal advocates, who successfully defended British businessman Shrien Dewani against charges that he had orchestrated a hit on his new bride Anni.
Forensic disputes are typical in high-profile cases where accused killers are well-resourced and able to pay experts to evaluate the reliability of state pathology and crime-scene findings. But, the issues raised by Van Zyl and Rohde’s legal team were so compelling that they persuaded the Appeal Court to both consider his case and release him on bail, pending the outcome of its deliberations on this highly complex matter.
That indicates that, at very least, the Appeal Court believes that Rohde has a reasonable prospect of success in challenging his conviction.
It is also worth noting that the Appeal Court has previously not shied away from invalidating a murder conviction that it determined was based on inconclusive forensic evidence.
In September 2017, over a year after the death of Susan Rohde and the initiation of a criminal prosecution against her husband, the country’s second highest court overturned the murder conviction of Thandi Maqubela, who had been found guilty of killing her estranged husband Patrick in June 2009.
Defence pathological expert Dr Gert Saayman – who had testified for the State in the murder trial of Paralympian Oscar Pistorius – testified that the exact cause of death could not be established, and the possibility that Patrick Maqubela had died of natural causes could not be excluded. The State had contended that Maqubela had been suffocated, but the inability of its own expert pathologist to establish an exact cause of death ultimately led to his wife’s acquittal.
Rohde and his legal team now contend that evidence given by state pathologists Dr Akbal Khan and Dr Deidre Abrahams could not be relied on to prove his guilt beyond reasonable doubt – or to substantively dispute his defense that his wife had hanged herself.
'Antagonistic and biased'
To make matters worse, they say, presiding Judge Gayaat Salie-Hlophe showed favouritism towards these witnesses, despite the holes in their evidence, and was antagonistic and biased against the defense’s pathology experts.
In heads of argument filed at the Appeal Court, Rohde’s lawyers argue that the underlying reasoning advanced by Khan – who was relatively inexperienced at the time that he had conducted an autopsy on Susan Rohde and concluded that she had been murdered – “was seriously flawed in several respects”.
They argue that Khan’s evidence should not have been relied on by Salie-Hlophe to convict Rohde, as he:
- Admitted that he had inaccurately calculated Susan Rohde’s time of death to be at 05h40. Jason Rohde claims he and his wife had been fighting that morning and she had gone to the bathroom at 7am. Khan conceded that the time of death he had determined could not be relied on.
- “Stated as a fact” that because lividity (discoloration of the skin due to the settling and pooling of blood following death) was present on Susan Rodhe’s back, she had died in a “lying position, lying on her back” and had not been suspended – as she would have been if she had hanged herself. The defence said Abrahams, who was also a state pathologist, had agreed that, “... lividity on the back does not prove that there was no hanging”.
- Prejudged the cause of Susan Rohde’s death as a murder when he arrived at the scene hours after she was found and determined that she was a “battered woman” without first conducting a proper investigation.
- Did not determine whether or not underlying injuries were present on Susan Rohde’s face “to prove or disprove his suspicion” that she had been smothered to death.
- Did not take photographs of the back of Susan Rohde’s neck to show, as he claimed, that it had “no ligature mark”. The defence argues that, given the over 2 000 photos Khan took, “... it is highly improbable if he had noticed that there was no ligature mark on the back of the deceased's neck, that he would not have taken a photo of the back of her neck”. The defence says its own photographs show a ligature mark on the back of Susan’s neck – which they argue is evidence that she hanged herself.
- Did not microscopically examine the tissues under the ligature mark found on the front of Susan’s neck to exclude the possibility that the cord around her neck had been wound around it before she died, and not afterwards, as he contended. Khan admitted that, if such tests had been done, their results may have exonerated Jason Rohde.
- Indicated in his notes that the hyoid bone in Susan Rohde’s neck had been fractured – a fracture that would be a powerful indicator that she had been strangled. Defence expert pathologist Dr Reggie Perumal also testified that Khan told him that he found such a fracture. Perumal then had the hyoid bone scanned and ascertained that it was not fractured. Khan later denied that he had told Perumal that the bone was fractured.
- Lost handwritten notes he had taken on the scene of Susan Rohde’s death and during her autopsy. Emails exchanged between Khan and Abrahams, who had observed Susan Rohde’s autopsy, were also allegedly “lost” – as were Susan Rohde’s personal belongings, including her personal diary, underwear, vanity case, wallet, cash, cheque book, and her clothing.
The State has, in turn, rubbished the evidence given by Rohde’s expert witnesses and contends it is “highly unlikely and improbable” that a “determined and courageous” Susan Rohde would ever have taken her own life.
In heads of argument filed at the Appeal Court, the State also notes that Khan noticed “faeces stain marks” on the tiles outside the bathroom where Susan was found, with faecal matter between her buttocks. No much matter was found on the floor of the bathroom or on the robe that Susan was wearing when she was found.
“The [NPA] submits that those stains could only have been deposited before the deceased [Susan Rohde] entered the bathroom, in whatever way,” the State argues. “This is a ‘smoking gun’”.
To make matters more challenging for the NPA, Salie-Hlophe appears to have had little to no regard for the defence’s expert pathologists, who she dismissed as unreliable “hired guns”. In a forensically complex case, it is crucial that the presiding judge at least attempts to show that she or he is considering the defence’s account of how the alleged victim died.
With so many question marks over the strength of the State’s forensic case against Jason Rohde, Salie-Hlophe’s apparent failure to seek answers from the NPA’s witnesses may end up costing the prosecution very dearly. In her apparent efforts to protect the State from relevant forensic questions, she may have seriously jeopardised its prospects of sustaining Jason Rohde’s murder conviction.