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[2013] ZAECGHC 69
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Anderson v S (CA&R75/2012) [2013] ZAECGHC 69 (19 June 2013)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, GRAHAMSTOWN)
Case No: CA&R75/2012
Date heard: 06 March 2013
Judgment delivered: 19 June 2013
In the matter between:
NEVILLE ANDERSON .......................................................................................Appellant
and
THE STATE ...................................................................................................Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
DUKADA J:
[1] The appellant was convicted in Regional Court, Uitenhage of two counts of fraud and two counts of defeating the ends of justice. All counts were taken together for purposes of sentence and he was sentenced to 7 years imprisonment. He then appealed against sentence.
FACTUAL BACKGROUND
[2] The appellant, aged 39 years at the time of trial, was employed by South African Police Services and stationed at Uitenhage Police Station.
One Donavan Berry was an awaiting-trial prisoner at St Albans Prison, Uitenhage.
His application to be released on bail was refused by the Court. While Donovan Berry was in custody in St Albans Prison he was booked out by the appellant on the 6 February 2008 per an SAP 127 document which was signed and authorised by Captain Pieter Willem Botha. In the said document it was stated that Donovan Berry was to be kept in custody in the Uitenhage Police Cells up to the 9 February 2008. But what actually happened is that after Donovan Berry was released from St Albans Prison on 6 February 2008 he was only taken into custody in Uitenhage Police Cells again on the 9 February 2008 and kept in custody between 12H45 and 14H20.
Donovan Berry was seen on the 1 March 2008 by a State witness Victor Kortrooi driving a green BMW in the parking area of Shoprite in the company of other young men. Donovan Berry was also seen by a State witness Lester Eugene Masimla driving around a green BMW. He was surprised to see him as he had heard that he was an awaiting- trial prisoner in St Albans Prison.
The appellant again booked out Donovan Berry from St Albans Prison on the 29 February 2008 and Donovan Berry was out of custody per an SAP 127 document which was falsely signed in the name of Captain P.W. Botha. Captain P.W. Botha at that time was not at work as he had undergone an operation. That SAP 127 document stated that Donavan Berry was to be kept in custody in New Brighton Police Cells up to the 5 March 2008. Donovan Berry was, however, never taken into custody at New Brighton Police Cells during the period of 29 February 2008 up to 5 March 2008. The appellant was brought back into custody of St Albans Prison on the 5 March 2008.
[3] The appellant was charged and convicted of four counts. In essence these counts were as follows:-
In Count 1 he was charged with fraud in that on the 6 February 2008 and at St Albans Prison he unlawfully, falsely and with intent to defraud to the potential prejudice of St Albans Prison, the State and the South African Community as a whole, represented to the St Albans Prison that he was booking out Donovan Berry from police custody from 6 to 9 February 2008 and that during that period he would be kept in custody in Uitenhage Police Cells whereas in truth he was not to keep Donovan Berry in custody during that period but to give him freedom during that period;
In Count 2 the appellant was charged with defeating the ends of justice in that during the period from 6 to 9 February 2008 at St Albans Prison he did unlawfully and with intent to defeat the ends of justice book out Donovan Berry, an awaiting-trial prisoner, from St Albans Prison where he was in police custody and let him free and to move around in the district of Uitenhage, except for the period 12H45 to 14H20 on 9 February 2008, whereas he should have been in police custody during that period;
In respect of Count 3 the appellant was charged with fraud in that on the 29 February 2008 at St Albans Prison, he unlawfully, falsely and with intention to defraud and to the potential prejudice of St Albans Prison, the State and community of South Africa in general, represented to St Albans Prison that he was booking out Donovan Berry in police custody from the 29 February 2008 to 5 March 2008 and that during that period Donovan Berry would be kept in custody in the New Brighton Police Cells whereas the appellant knew that in truth he was not to keep Donovan Berry in custody during that period but would let him free during that period.
In Count 4 the appellant was charged with defeating the ends of justice in that during the period of 29 February 2008 to 5 March 2008 at St Albans Prison he did unlawfully and with intention to defeat the ends of justice book out Donovan Berry, an awaiting trial prisoner, from St Albans Prison and let him free in the district of Uitenhage or New Brighton.
[4] The appellant was convicted as charged of all the four counts.
[5] Only the sentence is being challenged on a number of grounds and I will deal with them seriatim.
[6] Mr J. R Koekemoer, Counsel for the appellant, has argued that the Magistrate erred in giving excessive weight to his finding that the appellant’s conduct which resulted in Donovan Berry being released from police custody raised a possibility that Berry would commit certain offences. Mr Koekemoer submitted that that was an error as Donovan Berry had been released from custody on several occasions and he committed no offence. Mr Koekemoer cited the following remarks by the learned Magistrate in his judgment on sentence:-
“Die Landros is on verstaanbare redes bang dat Berry wel ‘n risiko mag inhou vir regspleging en weier borg. Berry het vry rondgeloop en het geen getuie geintimideer of gedood soos die landdros gevrees het. Die feit is dat daar ‘n inherente moontlikheid bestaan het dat hy dit kon doen. Die man is van tyd tot tyd in botsing met die reg en hy kon wel die dreigemente uitgevoer het.”
“Insidente van hierdie aard moet nie ligtelik afgemaak word nie.”
Adv Swanepoel, Counsel for the respondent, in reply, submitted that the inference drawn by the trial Court is a reasonable and justified one. It is a factor that should indeed have been considered and was not over-emphasised by the trial Court. In order to understand the reasoning of the learned Magistrate, in my view, his afore-mentioned remarks should be put into context. In the preceding paragraphs to the afore-quoted remarks in his judgment on sentence the learned Magistrate remarked as follows:-
“Dit is eerstens nodig dat die getuienes op meriete in perspectief gestel word ten einde die belang daarvan vir vonnis aan te merk. Donovan Berry word in ‘n Humansdorp se saak gearresteer saam met drie ander op ‘n aanklag van gewapende roof. Berry doen aansoeke om borgtog hangende die verhoor. Tydens die aanbieding van getuienis bly dit dat Berry allesbehalwe ‘n voorbeeldige person is. Hy was al verskeie kere in die verlede in botsing met die reg, en boonop wil die getuienis dit he dat indien hy borgtog verleen word, hy sal sorg dra dat die staatsgetuienis eenvoudig elimineer sal word. Die landdros, om vestaanbare redes, weier borgtog aan Berry en hy bly in aanhouding.”
In the above-quoted extract, the reasoning of the learned Magistrate comes out clearly and seems to me to be based on the evidence that was led in the bail application.
In my view the Magistrate was justified to take that factor into account. Appellant has been refused bail for reasons which the learned Magistrate mentions and appellant let out Donovan Berry despite that.
However, the learned Magistrate, in my view, ought also to have taken into account the fact that there is no evidence that during the period Donovan Berry was out of custody, he intimidated or killed a witness. For if he had done that would have been an aggravating factor against him. Of course the weight of this factor would have to be taken into account in determining a proper sentence.
[7] Mr Koekemoer also submitted that the learned Magistrate erred in giving excessive weight in having regard to incidents, some of which he purportedly had personal knowledge of, where Court officials had been harmed by offenders.
He contended that not only was the appellant’s legal representative not afforded the opportunity to address the Court on that point but no evidence was produced to show that the appellant was in any way involved in any such crimes or that the appellant, if released from custody, would commit such crimes.
Miss Swanepoel in reply submitted that the trial Court did not commit any misdirection by referring to these incidents.
In his judgment on sentence the learned Magistrate mentions the following incidents:-
(i) An incident where one of his colleagues with whom he worked was shot dead on his arrival at his home after work;
(ii) A second colleague of his, with whom he did not work, was shot dead in Durban by an accused whom he was about to sentence that very morning;
(iii) His third colleague was shot three times infront of his house when he was to go to work to pass a sentence;
His fourth colleague, with whom he worked, was attacked at her home.
He also mentions that many times they receive bomb threats in the Court building.
He also mentions an incident in which a witness stated under oath that he was present where a plan was discussed to shoot him dead during the course of the trial.
He further stated that it is not only presiding officers who are targeted but also State prosecutors, police officials, attorneys and advocates.
The afore-mentioned incidents do not appear from the record of the proceedings and it also does not appear that the learned Magistrate ever communicated the information about these incidents to the accused so that he would, if so advised, controvert them or address the Court thereon. In Sv H1. Wessels JA, considering the following remark by the regional magistrate in his judgment on sentence:-
“the many similar cases appearing in our Courts lately, and the mushrooming of the massage salons in Johannesburg, and our bigger cities”,
remarked as follows:-
“It is not clear from the record of the proceedings whether the regional magistrate relied on his personal knowledge of the facts referred to or whether they were communicated to him by the public prosecutor. The records make no reference to an address by him on the question of sentence. Ordinarily, facts having a bearing on the question of sentence, either in mitigation or in aggravating thereof, ought to be placed before the Court by way of recorded admissions or evidence on oath. In the case where a Court intends to rely on its personal knowledge of the facts having a bearing on sentence, those facts should in fairness to the defence be communicated to an accused so as to enable him, if so advised either to controvert them or to address the Court thereon.”
These incidents also appear to me not to be generally and locally notorious enough so as to entitle the learned Magistrate to take judicial notice thereof nor does the learned Magistrate rely on such judicial notice. I fully agree with Mr Koekemoer that the learned Magistrate committed a misdirection in giving weight to such incidents.
[8] Mr Koekemoer also submitted that the Magistrate erred in over-emphasising his view of what society demanded by way of retribution at the expense of other elements of sentencing.
He submitted that the Magistrate gave the excessive weight to public expectations regarding the speedy completion of criminal trials and that the appellant was at fault in delaying the completion of the trial. Miss Swanepoel in reply argued that the Courts should guard against the perception created with the community that members of the South African Police Force receive preferential treatment. She contended that the community has a direct interest in seeing that all people receive equal treatment before the law.
The learned Magistrate does indeed in his judgment on sentence vent out his concern about the delay in the finalisation of this matter which, he says, took a year to pass sentence after conviction. He also mentions the number of the criminal cases which were remanded in September and October and some tried. He seems to complain on the load of cases that rets on only two Courts. The learned Magistrate does not mention the relevance of these aspects in connection with his sentencing.
In my view, these considerations were irrelevant for purposes of sentencing in this matter and the learned Magistrate misdirected himself in those respects.
[9] Mr Koekemoer further contended that the learned Magistrate gave excessive weight to civil litigation instituted against members of the South African Police Services.
Miss Swanepoel argued that the reference to civil litigation against the members of the South African Police Services merely emphasizes the fact that there are several members who do not exercise their functions properly and commit serious transgressions.
She submitted that it is in the community’s interest that the trial Court should guard against imposing a sentence that could be interpreted as condoning the transgrassions committed by the Appellant.
The learned Magistrate remarked as follows on this aspect in his judgment on sentence:-
“Eise teen die polisiemag oorheers omtrent ‘n laerhof se siviele rol. Die situasie maak nie goeie indruk by die man op die straat nie. En daar rus ‘n duur verantwoordelikheid op die hof om ‘n gepaste vonnis op te lê. Die hof kan nie toelaat dat ‘n skeef getrekte vonnis in ‘n vingerwysing na die hof noodsaak nie. Dit mag vertolk word as kondonasie (onduidelik) vergrype”.
The learned Magistrate further remarks in his judgment on sentence as follows:-
“Wanneer ‘n mens na die gemeenskap se belang kyk dan dink ek oordryf ek nie wanneer ek die opmerking maak dat ons strafregstelsel in sy verskeie fasette daarvan nie ‘n goeie indruk maak by die man op straat nie. ‘n Mens kan maar net na hierdie saak as voorbeeld verwys”.
It appears to me from the above remarks that the learned Magistrate was correct in taking into consideration the interests of the society in his sentencing. It is trite law that those considerations should be taken into account by the Court in its assessment of the seriousness of the crime.2 I find no over-emphasis or over-statement of that aspect in his judgement on sentence. I therefore fully agree with the submission by Ms Swanepoel. I am mindful of the general note of caution expressed by Harms JA in S v Mhlakaza3:-
“The object of sentencing is not to satisfy public opinion but to serve the public interest.......... . A sentencing policy that caters predominantly or exclusively for public opinion is inherently flawed. It remains the Court’s duty to impose fearlessly an appropriate and fair sentence even if the sentence does not satisfy the public. ...........public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Court, the Court cannot allow itself to be diverted from its duty to act as an independent arbiter by making choices on the basis that they will find favour with the public.”
Reverting to this case I do not find anything in his judgment showing the learned Magistrate to have over-emphasised or over-stated the element of the societal views. He seems to me to have taken the views of the society as one of the factors in his sentencing.
“Public or private indignation can be no more than one factor in the equation which adds up to an proper sentence.” 4
[10] Mr Koekemoer also submitted that the trial Court erred in imposing a sentence which not is blended with a measure of mercy.
In his judgment on sentence the learned Magistrate seems to reflect his state of thought and also to have taken into account and balanced a number of factors including the element of mercy.
He remarks as follows in his judgment on sentence:-
“ Daarvolgens kyk die hof na die aanklagte ter sprake, die gemeenskap en u persoonlike onstandighede. Dit is noodsaakklik dat ‘n balans tussen hierdie aspekte gehandhaaf word want ‘n oor-of onderbeklemtoning van enige van hierdie aspekte gaan ‘n skeefgetrekte vonnis daarstel wat vermy moet word. Laastens word daar ook naturlik genade betoon”
One has also to be mindful of the well-known remark by Holmes JA in Sv Rabie5 that:-
“(Mercy) has nothing in common with maudlin sympathy for the accused. While recognising that fair punishment may sometimes have to be robust, mercy is a balanced and humane quality of thought which tempers one’s approach when considering the basic factors of letting the punishment fit the criminal as well as the crime and being fair to society.”6
[11] Mr Koekemoer has further argued that the trial Court, when considering an appropriate sentence, did not attach sufficient weight to the following factors:-
(i) That the appellant is a first offender in regard to the offence of fraud and defeating the ends of justice;
(ii) That he is gainfully employed and is the sole breadwinner of the family;
(iii) That he contributes financially towards his mother;
That he is being treated for post-traumatic stress disorder and depression;
That notwithstanding his transgression he has been retained in the services of the South African Police Services;
Mr Wessels, the legal representative for the appellant in the Court a quo referred, in his address in mitigation of sentence, to a number of pre-sentence reports which dealt with the above personal factors of the appellant. The learned Magistrate also dealt with those reports in his judgment on sentence. He remarks as follows in his judgement:-
“U persoonlike omstandighede noodsaak ook aandag. Verskillende verslae is ingehandig. Daar is verwys na verskille in sommige van hierdie verslae.
Die hof neem kennis van hierdie verskille maar beskou dit nie as deurslaggewend van aard nie. Dit is nie nodig om die inhoud van elke verslag te behandel nie-die partye het reeds daarna volledig verwys.”
It is clear from the above extract that the learned Magistrate did not deal specifically with the above personal factors in his judgment and as reasons for judgment are in the interests of justice, in my view, it would have been preferable if he had specifically dealt with them. In my view the learned Magistrate committed a material misdirection in that regard. The personal circumstances of the appellant should not be over-emphasised without balancing those considerations properly against the very serious nature of the crime committed and the factors.7
That is moreso that the punishment should fit the criminal as well as the crime, the fair to society and be blended with a measure of mercy according to the circumstances.8
[12] Mr Koekemoer also submitted that the trial Court erred is not imposing a sentence of correctional supervision or a fully suspended sentence of imprisonment or a shorter period of imprisonment.
Though a pre-sentence report on the sentence of correctional supervision was admitted as evidence and also that the legal representative for the appellant addressed to some length the trial Court on that kind of sentence, the learned Magistrate failed to deal specifically with the sentence of correctional supervision in his judgment on sentence.
One of the recognised grounds justifying interference on appeal is where it is shown that the sentence is vitiated by misdirections showing that the trial Court has not exercised its discretion reasonably9 or if the discretion has not been ‘judicially and properly exercised.”10
In my view the Court of Appeal will be in a position to find whether a discretion has been judicially and properly exercised by a trial Court in its sentencing, after considering the reasons given for the decision or conclusions made by such trial Court.
In Sv Immelman, 11 Corbelt JA remarked as follows on the Court’s duty to give reasons:-
“It seems to me, with regard to the sentence of the Court in cases where the trial Judge enjoys a discretion, a statement of the reasons which move him to impose the sentence which he does also serve the interests of justice. The absence such reasons may operate unfairly, as against both the accused person and the State. One of the various problems which may be occasioned in the Court of Appeal by the absence of reasons is that in a case where there has been a plea of guilty but evidence has been led, there may be no indication as to how the Court resolved issues of the fact thrown up by the evidence or on what factual basis the Court approached the question of sentence.”
The importance of complying with the duty to give reasons for the decision was stated as follows by Howie JA, as he then was, in S v Calitz.12
“Hoe dit ook al sy, dit moet beklemtoon word dat die behoorlike beskerming, enersyds, van ‘n appellant se grondwetlike reg tot appel en, andersyds, die gemeenskap se belang dat oortreders behoorlik gestraf word, van ‘n regterlike amptenaar vereis dat deeglike aandag gegee word aan die formulering en verstrekking van vonnisredes.
Daarsonder word gesonde strafregpleging belemmer.”
Returning to this case, I am at a loss as to how the trial Court, considered, if it did so, the option of the sentence of correctional supervision and how it came to a decision not to impose it. It seems to me that this Court has to do its best on such material as it has before it as contained in the trial Court’s judgment on sentence.13
[13] The appellate Court has power to interfere with the sentence imposed by the trial Court if one or more of the established grounds justifying such interference have been shown to teist.14
Marais JA remarks on this aspect as follows in Sv Malgas:-15
“A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial Court, approach the question of sentence as if it were the trial Court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial Court. Where material misdirection by the trial Court vitiates its exercise of that discretion, an appellate Court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a Court of first instance and the sentence imposed by the trial Court has no relevance. As it is said, an appellate Court is at large. However, even in the absence of material misdirection, an appellate Court may yet be justified in interfering with the sentence imposed by the trial Court. It may do so when the disparity between the sentence of the trial Court and the sentence which the appellate Court would have imposed had it been the trial Court is so marked that it can properly be described as ‘shocking’, ‘startingly’ or ‘disturbingly inappropriate”16
[14] Turning to this case what is startingly striking to me is the relative proportionality of the sentence.
There is no doubt that the offences of which the appellant was convicted are very serious. Appellant was a member of the South African Police Services at the time of the commission of these offences and was expected to uphold the law. Donovan Berry was an awaiting trial prisoner at the time of the commission of these offences. He had applied for bail but was refused. He got released from custody for two short periods through these misdeeds by the appellant.
Donovan Berry was first released from custody from the 6 February 2008 to 9 February 2008. He was again released from custody from 29 February 2008 to 5 March 2008. The first period of release is about 4 days, both the first and the last days included. The second period of the release is about 6 days, both the first and the last days included.
The first period of the release is covered by Counts 1 and 2, whereas the second period of release is covered by counts 3 and 4.
It also seems to me that the offences in Counts 1 and 2 were committed with a single intent and also constitute one continuous criminal transaction.
So is the case in respect of Counts 3 and 4.
In Dlamini vs 17 Cachalia JA remarked as follows:-
“Although section 83 of the Criminal Procedure Act 51 of 1977 permits prosecutors to charge a person with more than one offence when it is doubtful which of several offences may have been committed, it remains the Court’s duty to be vigilant that no duplication occurs. This is to avoid prejudice to an accused not only is there the likelihood that the accused may be punished more severely if convicted for multiple offences instead of just one but these offences become part of the offender’s criminal records.”
Although this aspect was never raised by the appellant in his Notice of Appeal nor in the argument it seems to me that this Court has to consider such aspect when it assesses the sentence, more particularly when inquiring into the proportionality between the offences and the period of imprisonment.
Though the trial Court, in the sentencing the appellant, treated the Counts as one for purposes of sentence, in my view, there would be a difference in the sentence if the appellant was sentenced for two convictions instead of four, and such two convictions treated as one for purposes of sentence.
[15] Taking into account the misdirection I have highlighted above, my remarks afore and the circumstances of this case in totality, I am of the view that if this Court were of a Court of first instance, it would have imposed a sentence of four years imprisonment.
I am, consequently, of the view that the disparity between the sentence which the trial Court has imposed and the sentence which this Court would have imposed had it been the trial Court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly” “inappropriate”. I am, therefore, of the view that this Court is justified to interfere with the sentence imposed by the trial Court.
[16] Regarding the ramblings of the learned Magistrate mentioned in paragraphs 9 and 10 above, I cannot understand how the appellant can be penalized for such overload of cases. In referring to the incidents in paragraph 9 above it seems to me that what the trial Court essentially had in mind was, in the interests of the community or society, a sentence which would deter others who might contemplate serious criminal conduct similar to the one in question in this matter. It seems to me that the trial Court was thereby sacrificing the appellant on the alter of deterrence, thus receiving an unduly severe sentence. As Howie AJA remarked in Sv Sobandla18, “where this occurs in the quest for an exemplary sentence, a trial Court exercises its discretion improperly or unreasonably.”
It is apposite at this stage to refer to the following remarks by Miller JA in Sv Maseko19, a case in which the magistrate imposed an exemplary sentence on the appellant for the unlawful possession of firearm and ammunition:-
“What has to be guarded against when exemplary sentences are imposed ..........is the danger that excessive devotion by a judicial offer to furtherance of the cause of deterrence may so obscure other relevant considerations as to result in very severe punishment of a particular offender which is grossly disproportionate to his deserts.”
[17] I must, however, re-iterate that the offences of which the appellant has been convicted are very serious. I do not wish to be misunderstood on that point. Nonetheless, as serious as the offences are, and as important as it is in the interest of the society generally that a strong signal be sent out that the conduct such as this will be met with a stem response by the Courts, justice demands that a proper balance be struck between the objective gravity of the offence, the interests of society and the interests of the offender.
[18] In the circumstances the appeal is allowed and the following order is made:-
“The sentence imposed by the Magistrate is set aside and the following sentence is substituted:-
‘The accused is sentenced to undergo four years imprisonment, all four counts taken as one for purposes of this sentence’.”
________________
D.Z. DUKADA
JUDGE OF THE HIGH COURT
I agree
_________________
J.D.HUISAMEN
ACTING JUDGE OF THE HIGH COURT
FOR THE APPELLANT : Adv J.R. Koekemoer
Instructed by
Coltman Attorneys & Noataries
Instructed by : Grahamstown Justice Centre
FOR THE RESPONDENT : Adv Z. Swanepoel
Office of the Deputy Director of Public Prosecutions, Grahamstown
1 1977 (2) SA 954 AD at 960 H
2See Sv Zinn 1969 (2) SA 537 (A) at 540-G-H
3 1977 (1) SACR 515 (SCA) at 518 e-g
4Per Heher JA in Sv Gardner 2011 (1) SACR 570 (SCA) at 591 L-i; See also Sv Maseola 2010 (2) SACR 311 (SCA) at 315 a-b
5 1975 (4) SA 855 (A) at 861 C-G;
6See also Rv Karg 1961 (1) SA 231 (A) at 236 A-B and Sv Zinn, supra, at 540 G.
7So Salzwedel 2000 (1) SA 786 (SCA);
Combrink v S [2012] JOL 29356 (SCA) para 22 and 24
8Sv Rabie 1975 (4) SA 855 (A) at 862 G-H
9Sv Matlala 2003 (1) SACR 80 (SCA) 83b-f;
Sv Roamer 2011 (2) SACR 153 (SCA) at paras 22, 23-31
10Sv Saddler [2000] ZASCA 105; 2000 (1) SACR 331 (SCA) [2000] 2 ALL SA 121 paras 6-9
11 1978 (3) SA 726 (A) at 729 B-D
12 2003 (1) SACR 116 (SCA) in para12
13The same approach was followed in a similar situation by Schreiner JA in Van Aswegen v De Clercq 1960 (4) SA 875 (A) at 881 G-882 E; See also Sv Frazenburg and Others 2004 (1) SACR 182 (ECD) at 188 a-c
14Sv Mntungwa en’n Ander 1990 (2) SACR 1 (A)
15 2001 (1) SACR 469 (SCA) at 478 d-g
16See also Sv Giannoulis 1975 (4) SA 867 (A) at 873 G-H; Sv Kibido 1998 (2) SACR 213 (SCA) at 216 g-j; and Sv Salzwedel and Others, supra at para 10; Sv Kgosimore 1999 (2) SACR 238 (SCA) at 241 para 10; DPP v Mngoma 2010 (2) ALL SA 456 (SCA) at 460 para 11
17 2012 (2) SACR 1 (SCA); [2012] 2 ALL SA 569 (SCA) at [17]
18 1992 (2 SACR 613 (A) at 617 f-g
19 1982 (1) SA 99 (A) at 102 A-F; See also Sv Hermanus 1995 (1) SACR 10 (A) at 12 d-h