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NOT REPORTABLE

DELIVERED: 14 JUNE 2007

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

         

        CASE NUMBER: A390/04

In the matter between:

JOSEPH NGWENYA                                                                        APPELLANT

And

THE STATE                                                                                  RESPONDENT                             

                             

JUDGMENT

MAVUNDLA, J.,

1. The appellant was charged together with others at the Regional Court Oberholzer, sitting at Foschville on several charges of robbery.  The appellant was found not guilty on all but counts 3 and 6 for which the magistrate found that there were aggravating circumstances. The magistrate then sentenced the appellant to imprisonment of 15 years in respect of each count and ordered the sentences to run concurrently.

2. The charge in regard to Count 3 was robbery committed on 10 January 2002 at or near 16 Gars Street, Foschville when a VW Jetta motor vehicle and certain items to the value of R100,000 were stolen. Count 6 related to a robbery committed on the 21 February 2002 at or near 41, Second Street, Foschville, when a Fiate Uno motor vehicle and certain items to the value of R80 000,00 were stolen. The appellant was duly represented by an attorney. He pleaded not guilty to all the counts and denied knowledge of the offences.

3. It has been submitted on behalf of the appellant by Mr. J le F Pienaar  that:

3.1 The record contains portions that are inaudible. The reasons for the admission of the evidence of the trial-within-a trial are incomprehensible,   and as a result this Court does not know the reasons for the magistrate in admitting the evidence relating to the pointing out and the admissions made to superintendent Rautenbach;

3.2. The pointing out and admissions or confession made to superintendent  Rautenbach by the appellant is inadmissible because it was not made freely and voluntarily.

3.3. The interpreter in the trial- within-a- trial was not called to testify in the main trial. Although it was raised in the heads of argument, it was however not persisted with.

3.4 The State did not prove that superintendent Rautenbach was a peace officer and that therefore the pointing out and admission or confession made by the appellant was inadmissible and that therefore the conviction in respect of count 6 cannot stand.

3.5 There is no evidence about when and where the television cabinet, on which the palm print of the appellant was found, was acquired from and that the appellant may have handled the said cabinet at a place unknown to him.

4.       The  conviction of the appellant on  count 3 is premised firstly on his right palm  print having been found on a television cabinet in the house where the robbery took place, secondly on the appellant having made certain admissions to superintendent  Rautenbach

5. In respect of count 6, the conviction of the appellant is premised on the appellant having pointed out the house of the complainant in this charge, having made admissions amounting to confessions and having pointed out relevant places such as where the cars were parked, where the keys were lying etc.

5. There are certain portions of the record that are not audible. In this regard,  Mr. Pienaar has referred to the matter of S v S 1995 (2) SACR 420 and  S v  Sebothe and Others 2006 (2) SACR 1. In the Sebothe matter at paragraph [7] I stated that: “It is indeed so that where the record of the proceedings is not available, and it is impossible to have same reconstructed, then the conviction and sentence should be set aside.” It needs to be emphasised that it is not in every case where there are portions which are  inaudible that the conviction would be set aside. Each and every case must be judged on its own merits. Generally, and it is recommended, that where the record on appeal is inadequate or substantially defective, the appeal should be postponed and the clerk of the magistrates’ court be directed to reconstruct the record in collaboration with the magistrate and together with the parties that were involved in the matter. It is not necessary that the reconstruction should be absolutely perfect and be identical in words, it would suffice if, when having regard to the entire record, it  makes sense^[1].

5. In casu the magistrate has been given an opportunity to reconstruct the portions of the evidence that are inaudible, as reflected on page 191A that was handed to us, per courtesy of Mr. Pienaar. However, the  section that relates to the reasons for the decision regarding the trial-within-a-trial has not been attended to by the magistrate.

5. We have considered whether we should have the appeal postponed and remit the record to the clerk of the magistrates court to have those portions attended to. We have decided against that avenue for two reasons. Firstly, the appellant was convicted and sentenced on 2 October 2003. The appellant has the right to have his appeal finalised as soon as is reasonable possible.^[2] To have the record remitted to the magistrate would result in a further delay in the hearing of the appeal since it would take some time before this matter is placed on the appeal role, due to the fact that there are quite a number of outstanding criminal appeals in this division. The further consideration is the fact that this Court is in a position to evaluate the relevant portion of the evidence relating to the trial-within-a-trial  and decide as to whether in accepting such evidence, the magistrate did not misdirect himself.

5. The reason why the trial-within-a-trial was held is due to the fact that it was contended by and on behalf of the appellant that the pointing out and the admissions were not made freely and voluntarily. The trial-within-a-trial this was quite correctly then held.^[3]

5. In the matter of S v January ,  Attorney- General, Natal v Khumalo ^[4]the Appeal Court said that:

“The main provision of s219A(1) is couched in unambiguous language. It says that evidence of an extrajudicial admission by an accused is admissible in evidence against him provided, inter alia, that it is proved to have been voluntarily made. Clearly, therefore, evidence of an involuntary admission is inadmissible. And as found in Khumalo, linguistically the subsection admits of no exception.

      It may be that the Legislature’s main aim in enacting s219A was to cast an onus on an accused to prove, provided that certain requirements are met, that a written admission by him was not voluntarily made, and that there is no room for a restrictive interpretation of the section in order to give effect to common law rules.”

It is clear that the State must prove that the appellant had freely and voluntarily made any admission or pointing out.

5. After having heard the evidence ofsuperintendent Rautenbach, captain Moseri as well as the appellant during the trial-within-a-trial, the magistrate held that he was satisfied that the State’s version can be accepted that he was not subjected to assault or duress and he proceeded to allow the pointing out. Since his reasons are not clearly discernable it requires of us to evaluate the relevant evidence.

5.  Superintendent Rautenbach  testified in the trial-within-a-trial. He said that he was a superintendent in service of the South African Police service and has been in the police force for 20 years. At the time he was stationed at Ventersdorp police station. On the morning of  8 March 2002 he was requested by inspector Smit to come and assist with a pointing out.

5.  Superintendent Rautenbach proceeded to Foschville on the morning of the 8 March 2002. He introduced himself to the appellant by producing his appointment certificate and explained to the appellant why he is there. He also made a copy of his appointment certificate and the appellant signed same at the back. He  inquired from him as to whether it is he who wants to make a pointing out. The appellant confirmed this.  The superintendent further testified inter alia that he informed the appellant of his Constitutional rights and that he is not obliged to make any pointing out nor to say anything to him. He also took photographs of the appellant and nowhere did the appellant point out to him nor complain that he had been assaulted and or  tortured. He offered to have the appellant taken to a doctor if he has been assaulted, but the appellant declined this overture saying that he has not been assaulted.

5.  During the pointing out superintendent Rautenbach  always and repeatedly asked the appellant whether whatever he was pointing out he was doing it freely and voluntarily. He would complete the relevant forms regarding the appellant’s positive response.  He denied ever having at any stage forced , or compelled or coerced the appellant to do the pointing out. He had also advised the appellant that he can take him to a doctor if he had been assaulted but the appellant indicated that he was no assaulted and that he wants to do the pointing out freely and voluntarily. During the communication with the appellant he was assisted by captain Moseri as the interpreter. He also took pictures of the appellant without his clothes (with his underwear on) and nowhere did it appear as if the appellant had been assaulted.

5.   During cross-examination the superintendent refuted that the appellant had been influenced nor coerced or assaulted in his presence nor by him to making the pointing out. He further explained that there were no signs of the appellant having been tortured. He afforded the appellant to see a doctor and the appellant did not seize that moment. If the appellant went to a doctor at Potchefstroom, that would have been after the pointing out had been done and there would be records in that regard,  however he had not seen these.

5.  Captain Moseri also testified that he acted as an interpreter for the appellant during the pointing out. At no stage did the appellant complain to him nor to superintendent  Rautenbach that he had been assaulted or coerced to do the pointing out. He had been communicating with the appellant in Tsonga and they understood each other very well. The appellant had conveyed to him in Tsonga that he wants to do the pointing out and that he does so freely and voluntarily. He denied that he had been with inspector Smit and the appellant prior to the 8 March 2002. He said that he knows nothing about the appellant having received medical treatment for the assault which he sustained. He says that the rights of the appellant were explained to him.

5. Captain Moseri denied having informed the appellant that he must co-operate  with the white policemen otherwise they would harm him.  He further denied that the  appellant was tortured and assaulted  at any stage in his presence.  He further testified that he enquired from the appellant, as requested by superintendent  Rautenbach, as to whether he had been assaulted. At no stage did the appellant complain nor state that he had been assaulted.  He further stated that the rights of the appellant were explained to him. He further said that the pointing out by the applicant was done freely  and voluntarily.

5. The appellant had stated in his evidence that on the day of his arrest,  on the 6 March 2002,  they were taken to a small cell in the charge office and then from there he was taken to the cells in the police station. On the following morning of the 7 March 2002 the police fetched him and inquired from him as to what he wants in Foschiville. He told the police that he and his friends had been phoned by somebody. The police then took him to a certain house and asked him,  whether he knows the said house. On telling the police that he does not know the said house, they accused him of playing games. His feet were then shackled, his hands were handcuffed and he was then blindfolded. He felt a wire or cable being placed on his feet and testicles and then felt that he was electrically shocked. He was then taken into a combi where the cable was removed. In the combi there were four white policemen of whom one was inspector Smit and also present was the policeman who acted as an interpreter.

5. He further said that the interpreter had been telling him that he must co-operate and do as the white policemen were asking him to do or otherwise they would  injure him. He said that the interpreter is the same witness who testified in court (meaning captain Moseri). Inside the combi the cable would be removed from his private parts and he would then be asked whether he knows what it is and he would say he does not know what it was. He says that the policemen who tortured him are the four white policemen and the interpreter. He slept at Buffelshoek that night.

5. On the 8 March the same white police officers and the same interpreter then fetched him and took him to a dam where he was threatened to be thrown into the dam unless he co-operates. When he was fetched from Buffelshoek he was manacled on his feet and had his hands handcuffed. One cord was placed on his feet and the other on his testicles and again he was shocked. He eventually agreed to co-operate with them. He was then taken to the police station where he found superintendent Rautenbach. He was asked to strip and photographs of him were then taken.  He was then asked to sign some documents, one of which contained the photo of superintenden Rautenbach. He was then taken to the house which he had been taken to previously, where he was taken into the yard. He was instructed to point at certain places and photos of him were then taken.^[5]

5.  He says that he attended a medical examination when he was taken to Potchefstroom prison as the result of the pains over his body. Besides the doctor he told his co-accused of his torture.  He says that on the day of his first appearance at court he complained to the magistrate that he was often fetched from the police cells and tortured and that he requested to be detained no longer at the police cells,  but at prison. As the result  he was taken to prison. He says further that he has laid assault charges and a J88 form was completed and he does not know what happened to it.

5. Under cross-examination,  he said that captain Moseri did not assault him but was just interpreting what was told to him. It was pointed out to him that when he testified earlier, he had said that the interpreter as well had assaulted him. He responded by saying that he was only an interpreter at the time. He says that the reason why he did not tell superintendent Rautenbach that Captian Moseri was present when he was assaulted, is because the superintendent  did not ask whether he had been assaulted or not,  but merely let him sign. He says that he did not point the direction where they were to go to. When asked as to how did superintendent Rautenbach know where they were supposed to go to, he says that its because he was being accompanied by captain Moseri who was present  the previous day when he was taken to a house. He later on the same question says that in fact he was seated at the back passenger seat when he was driven to the house and inspector Moseri did not direct superintendent Rautenbach as to where to go to. He does not know whether they spoke before but they drove off directly to the said house.

5.  He says that on their arrival at the house he was taken into the house and photos were taken of him pointing out.  He says that he was afraid of asking why he must undress and why photos of him were being taken. He says that the superintendent did not tell him anything. He was merely instructed by the interpreter to take off his clothes and that they are going to take photos of him.

5. In my view the evidence of both superintendent Rautenbach and captain Moseri is cogent and they did not contradict themselves in any way. On the contrary the appellant had contradicted himself in various respects. For instance, whereas in evidence in chief he says that he was taken to the house and at the yard he was instructed to point out certain places^[6], under cross-examination he said that he was taken inside the house where the photos were taken.^[7] He said that he did not tell supreintendent Rautenbach of the torture and assault because he was not asked^[8], later he says that the reason is because he was in the presence of other police officers and   he did not ask him.  Later he says he did not tell of the assault because he was afraid.^[9]  The appellant, in my view, was not consistent in his version. The probabilities are that he was not assaulted or tortured as testified to by the superintendent and the captain. In my view the version of the appellant is highly improbable, particularly that the superintendent would not have asked the appellant whether he had been assaulted, since the superintendent came from a different police station than those police who the appellant alleges had assaulted him. It is further improbable that Rautenbach would have known where to drive to without being directed by someone, especially since the appellant later says that captain Moseri did not direct the superintendent as to where to drive to. The appellant is, in my view, the person who directed the superintendent.

5. In the circumstances I am satisfied that the magistrate, in accepting the version of the police officers that the appellant was not assaulted nor tortured, did not misdirect himself nor did he err in that regard. In the premises the evidence regarding the pointing out and the admissions made by the appellant were correctly allowed by the magistrate.

5. With regard to the contention that the State had not proven that the superintendent is a peace officer and that therefore there was no evidence regarding the admissions or confession made by the appellant, reliance is made on the matter of R v Debele^[10] and R v Tshetaundzi.^[11].

5. Section 1 of the Criminal Procedure Act 51 of 1977, defines^[12] a peace officer as including inter alia any police official. A police official means any member of the Force as defined in section 1 of Police Act, 1958 (Act 7 of 1958), and police has a corresponding meaning; Section 1 of the South African Police Service Act 68 of 1995 describes a member of the police service as meaning any member of the Service referred to in section 5(2) (dealing with the composition of the Police Service).

5. In the matter of Rex v Mahlase^[13] it was pointed out that in the matter of  Morapedi  v Springs Municipality (1946, TPD 105 at 109) Blackwell J held that peace officer was intended to include a strictly limited class of persons in authority.  In Rv Tshetaundzi (supra) Steyn JA at 572G said that the word peace officer must be given an exclusive definition with  regard to the provisions of section 244 of the then Criminal Procedure Act 56 of 1955. This approach, excludes for instance a constable as being a peace officer for purposes of section 217 and 219A.

5.  Whereas the above mentioned definition of a peace officer is wide enough to include any member of the Force, also non-commissioned members such as constables, sergeants and inspectors, it has always been accepted, in criminal proceedings, that only commissioned officers are entitled to act as police officers for purposes of section 217 and 219A. I do not know of any consideration why that salutary principle is to be discarded. I accept accordingly that it was necessary for the court to have been satisfied that Rautenbach was a commissioned officer when he officiated at the pointing out and recording of the reports made simultaneously therewith.

5.  It is common knowledge of which any court can take judicial notice that from the rank of captain upwards all police officers are commissioned officers. That would of necessity include a superintendent. If authority for the statement is needed it is only necessary to look at section 33 of the South African Police Service Act, no. 68 of 1995, read with 8 (1) and (6) of the South African Police Service Regulations. The aforesaid section 33 provides that the President may commission officers. Regualtion 8 (1) as substituted by regulation 721, dated 27 October 1995 and published in Government Gazette 21375 fixes the hierarchy of Police Force from, at the top: The National Commissioners, Director, Senior Superintendent, Superintendent, Captain, Inspector, Sergeant to the at the bottom Constable. Regulation 8 (6) in Government Gazette no 16782 substituted by regulation 1670 of 27 October 1995, identify commissioned officers from the ranks of Captain or Senior Supervisor or higher. In regulation 8 (7) non-commissioned officers are identified as Inspectors and Sergeants. Moreover section 30 of Act 68 of 1995, provides that a document in a prescribed form, certifying that a person has been appointed a member, shall be prima facie proof of such appointment.

5. Superintendent Rautenbach produced his appointment certificate^[14] to the appellant who signed a copy of such a certificate. In the Commentary on Criminal Procedure Act, the learned authors state that the onus resting on the State to prove that a person is a peace officer  can be discharged on a preponderance of probability.^[15] The evidence of Rautenbach as to how he identified himself is in my view sufficient to discharge the onus that is upon the State.^[16]

5. In the premises, I hold the view that there was nothing more that the State needed to do, either than leading the evidence of superintendent Rautenbach, as it did. This must be seen in the context that during the trial, the status of Rautenbach was never placed in issue. In the premises, this point raised in this regard must fail.

6. The appellant’s version was a denial that he participated in these crimes. He further alleged that he was electrocuted and told what to point out.

5. It is common cause that the appellant was not identified by any witness relating to both counts 3 and 6. It is undisputed that on the 11 January 2002 at about 21:15 Mrs Letitia Johannes Steyn and Jacobus Steyn of 16 Gars street Foschville, whilst they were with their guest in their house, were robbed of  a VW Jetta motor vehicle as well as various items to the value R100 000,00 by  five unknown people, three of whom were brandishing firearms. Although they were subsequently invited to an identification parade, they, however, did not identify the appellant.

5. Inspector J H Schlebush testified that he is stationed at the local Potchefstroom Criminal Record Bureau. On 11 January 2002 he uplifted a palm print from a television cabinet in the lounge of house number 16 Gars Street Foschville. On 6 March 2002 he received from inspector Smit a palm print belonging to the appellant. He compared  the appellant’s palm print with the print  he found on the television cabinet, and found that the said palm prints are identical and he concluded that the palm print he had found at the cabinet belonged to the appellant.

5.  During cross examination inspector Schlebush stated that a finger print, if it is in a convenient place it can remain for a long time. He also testified that an old finger print does not easily get lifted as compared to a fresh print. He testified that he does not know when and from where was the relevant cabinet acquired by the Steyns. He conceded that it is a cabinet readily found in furnisher shops. It was put to him that the appellant would testify that before his arrest, he has never been to Foschville, to which the inspector responded by saying that he lifted the palm print from the complainant’s house at 16 Gars street. It was further put to him that the appellant would testify that on the day of his arrest he was taken to various places and that it is possible that he could have been taken to the said address as he was blind folded.

5. During his testimony in the main trial, the appellant when asked by his attorney as to how it came about that his palm print was found at house no 16 Gars street,  Fochville , he said that he does not know how it came about that it was found there since he does not know that place.

5. The magistrate, in accepting the evidence of inspector Schlebush, took into account the fact that the defence did not put to the witness as to when and how the palm print of the appellant could have come to the said cabinet. Neither was it put to the state witness as to the possibility how recent the said cabinet could have been brought.

5. In my view, as the authorities also state that the State cannot be expected to close every conceivable possibility, especially if such possibility is  wide and vague and not canvassed in advance with the State witnesses. I am of view that the magistrate cannot be faulted in having received the evidence of inspector Schlebush with regard to the finding of the palm print of the appellant. Besides, it is too fortuitous to be reasonably possibly true that the appellant’s palm print could have found its way to be on the relevant cabinet, at some other remote and unknown place,  at one or other unknown time in the past for it  to be uplifted in Foschville where the appellant had never been  to before this particular incident. There is no merit in the submission made that the State had to prove when and where the cabinet was obtained from. I am of the view that the evidence pertaining to the finding  of the palm print was correctly accepted.

5. Since it was found that the pointing out was made freely and voluntarily, it stands to reason that the evidence that the appellant also pointed out the house of the complainant in count 6 could not be refuted. In this regard the evidence of  superintendent Rautenbach is that the appellant pointed out the house from which the Uno motor vehicle was stolen, as well as where the Uno and the BMW were parked at the time of the commission of the offence. The appellant  pointed out to the superintendent where the television, the keys, video, cell phone and the micro wave had been when these were robbed. The court concluded that only a person who had inside knowledge and had been to the house relating to count 6 could have been able to do that. The version of the appellant that Rautenbach drove to the house undirected even by captain Moseri has to be rejected as false.

5. In the light of the above, it stands to reason that the appeal of the appellant on the merits cannot succeed. It would serve no purpose to analyse the rest of the evidence having regard to the fact that the basis upon which the appeal was mounted cannot succeed. I am of the view that the conviction in regard to both count 3 and count 6 must be confirmed.

5. With regard to sentence, it is submitted that the compulsory 15 years imprisonment sentence, in respect of each count, was imposed in terms of section 51 of the Criminal Amendment Act, 105 of 1997 on the basis that the appellant was found guilty on robbery with aggravating circumstances, whereas the appellant was found guilty of robbery (without aggravating circumstances), and that therefore the sentence should be reduced; reliance on this is made on S v Ndlovu 2003 (1) SACR 331 (SCA) and  S v Ndlovu 2004 (2) SACR 70 (WLD).

5. On the other hand it is submitted on behalf of the State that although the appellant was sentenced to 15 years imprisonment in respect of each count, he was not sentenced in terms of  section 51 of the Criminal  Law Amendment Act 105 of 1997.  The State pointed out that a sentence of 15 years is within the jurisdiction of the regional court. It is however contended that there were aggravating circumstances and that therefore the sentence imposed is appropriate having regard to the circumstances of the case.

5. The appellant was  26 years old at the time of imposition of sentence. His father passed away in 1994. He has a fiancée, co-operated with police in pointing out. He had been in custody for 18 months before he was sentenced and has a child. It is further contended that he was not made aware of the possibility of minimum sentence.

5. It is indeed so that in both instances of the commission of the robberies, there were firearms brandished. The mere brandishing of firearms or something similar to a firearm is enough to strike fear in the mind of the victim. Whether the firearm is functional or not, the victim at the relevant time dare not show some bravado to inspect whether the firearm is functional or not lest he becomes aware of its functionality with fatal consequences. In many such instances the argument is that there were no physical harm done on the victim. Less is said about the trauma the victims are subjected to.

5. The imposition of sentence is a matter of the discretion of the relevant presiding officer^[17]. In the matter of S v Whitehead^[18] it was stated that:

 “In assessing an appropriate sentence it is not necessary to have regard only to the main purpose of punishment-viz deterent, preventetative, the reformatative and  and retributive…but also the individual concerned and the circumstances of his crime. The appellant’s crimes were heinous indeed. This is an aspect to which this court must inevitably accord due weight….of course, it is trite law that in  the  assessment of punishment, the gravity of the offence charged should be balanced against those factors which are personal to the offender, and that proper regard should be had to all factors which tend to reduce his moral blameworthiness for the offence charged.”

5. In casu the appellant co-operated with the police and showed inspector Fourie a pistol in the long grass. It is not in dispute that the said firearm had rusted and was not in a working condition. However the appellant and his cohorts  were in both instances brandishing  three firearms. The magistrate was entitled to take this aspect into consideration when imposing sentence. However, the fact that there are such circumstances does not necessarily mean that one must disregard the other factor, like for instance the youth of the appellant.^[19] It does not seem that the magistrate paid any attention to this aspect. Neither did he pay any attention to the rehabilitative aspect  of the appellant. In S v Sithole^[20] the Appellate Court said that it does not mean that a long term sentence is the only appropriate punishment. The rehabilitation of the appellant must also be had in regard. It does not seem that the magistrate gave proper attention to these aspects.

5. In the matter of Mahomotsa ^[21]the Supreme Court of Appeal stated that there are delineation in s51 Act 107 of 1997, there are bound to be differences in the degree of seriousness. This clearly means that the presiding officer when exercising his prerogative of sentencing,  he must have regard to the degree of seriousness of the relevant crime for which the accused person is to be sentenced. In the matter of S v Isaacs and Another ^[22]Yekiso stated that:

      

“The presence or otherwise of aggravating circumstances impact significantly on the quantum of sentence the court is likely to impose, particularly in the light of the provisions of the Criminal Law Amendment Act”.

 Indeed the same hold where the accused person was not informed of the minimum sentence^[23].  Again where the minimum sentence is not applicable, it is not proper, in my view, to impose a sentence as if the minimum sentence is applicable. Where the magistrate imposes his maximum jurisdictional sentence, in order to avoid any confusion, it needs to be clearly stated that it is not the minimum sentence that he is imposing. I am also of the view that where the magistrate imposes a sentence in excess of the prescribed minimum sentence, he must also state the reasons for imposing such additional sentence that is in excesses of the prescribed minimum sentence.

5.  Taking the totality of what I have stated herein above, I am of the view that the magistrate misdirected himself in imposing the sentence of fifteen years imprisonment in respect of each count.

5.  In the premises, the following order should be made:

1. The conviction on count 3 and count 6 be and is confirmed;

2. The sentences of fifteen years imprisonment in respect of count 3 and count 6 are set aside and substituted with the following sentences:

  “(a) accused is sentenced to 12 years imprisonment on each count 3 and count 6;

    (b) It is further ordered that both sentences shall run concurrently;”

3 It is further ordered that the commencement of the running of this sentence is antedated to the 2 October 2003.

N.M. MAVUNDLA

JUDGE OF THE HIGH COURT

I agree and it is so ordered.

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                                                          WJ HARTZENBERG

JUDGE OF THE HIGH COURT                                                                                                                                   

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