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[2016] ZASCA 37
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Singh and Others v S (862/2015) [2016] ZASCA 37; 2016 (2) SACR 443 (SCA) (24 March 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 862/2015
Reportable
In
the matter between:
SHAMDUTT
SINGH
FIRST APPELLANT
ABDUL WAHAB
CARRIM
SECOND APPELANT
LALELANI
MBANJWA
THIRD APPELLANT
MAZIBONGWE INNOCENT
NGOBE
FOURTH
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
Citation:
Shamduth Singh & others v The State
862/2015
[2016] ZASCA 37
(24 March 2016)
Coram:
Tshiqi; Swain and Mbha JJA and Tsoka and Victor AJJA
Heard:
02 March 2016
Delivered:
24 March 2016
Summary:
Undercover operation conducted in terms of
s 252A
of the
Criminal
Procedure Act 51 of 1977
– merits of convictions not challenged
– challenge based on s 35(5) of the Constitution –
fairness of trial conceded
– rights violations challenged on
the basis that the conduct of the undercover operation was
detrimental to the administration
of justice – not alleged that
the rights violation affected the appellants themselves –
alleged the rights violated
were those of the general public –
enquiry – no onus of proof – entails a value judgment –
entails a balancing
of rights in the Bill of Rights and respect for
the judicial process – on the facts the undercover operation
was aimed at
protecting the general public – no flagrant
disregard of rights of public.
ORDER
On
appeal from:
KwaZulu-Natal Local Division of the High Court,
Durban (McLaren J sitting as court of first instance):
1.
The appeal against the
convictions is dismissed.
2.
The appeal against the
sentences is upheld partially to the extent reflected below:
2.1
First Appellant
(a)
the sentence imposed in
count 6 is ordered to run concurrently with the sentences in counts
10, 12, 13 and 14;
(b)
the sentence imposed in
count 1 is ordered to run concurrently with the sentences in counts
5, 16, 17, 18, 19 and 20;
(c)
the first appellant is
therefore sentenced to an effective term of 20 years imprisonment.
Third Appellant
a)
the sentences imposed
in counts 6, 7, 8, 10, 11, 14 and 15 are ordered to run concurrently;
b)
the sentences imposed
in counts 1, 16 and 17 are ordered to run concurrently;
c)
the third appellant is
therefore sentenced to an effective term of 20 years imprisonment.
Fourth Appellant
a)
the sentences imposed
in counts 13 and 14 are ordered to run concurrently;
b)
the fourth appellant is
therefore sentenced to an effective term of 15 years imprisonment.
JUDGMENT
Tshiqi
JA (Swain and Mbha JJA and Tsoka and Victor AJJA concurring)
[1]
The issues raised in
this appeal concern an undercover operation termed ‘Operation
Texas’ (the operation) conducted
by the South African Police
Service (SAPS) in 2007 and 2008 in terms of s 252A of the Criminal
Procedure Act 51 of 1977 (the Act).
Its objective was to infiltrate
and detect criminal activities of one of the syndicates that were
involved in several incidents
of hijackings and armed robberies of
large 18 wheeler trucks along the N3 highway stretching between
Durban and Gauteng. Although
there were other syndicates involved in
similar criminal activities in the area, the operation targeted the
syndicate to which
the appellants were members.
[2]
The modus operandi in
all the incidents involving the appellants was almost the same.
Trucks parked along the highway and at truck
stops in the evenings
were identified as possible targets by the members of the syndicate
performing the role of spotters. They
were inspected and if their
wheels were in good condition the truck driver would be held up at
gunpoint and tied up. A member of
the syndicate playing the role of a
driver would then drive the truck with the assistance of a guard to a
safe place where the
wheels were removed and loaded on to another
truck which would transport them to a specified place. The hijacked
truck and its
occupants were left at the scene but were deprived of
their cell phones so that they were not able to contact the police
and their
employers. The wheels would be sold to the co-ordinator of
the group who would be contacted once the wheels had been removed to
give further instructions on where they would be taken. The members
of the syndicate were paid a specific amount for every wheel
delivered on the instructions of the co-ordinator and he in turn,
sold them to his own unidentified contacts at a higher amount.
[3]
In a quest to ensure
the conviction of the members of appellants’ syndicate, the
SAPS, through the Commander: Provincial Crime
Intelligence Projects,
KwaZulu–Natal, made an application to the office of the
Provincial Director, Public Prosecutions,
in terms of the Act to
conduct the undercover investigation for a period of three months in
accordance with the guidelines issued
in terms of the Act in order to
infiltrate the syndicate. The first appellant was the primary target
as the information at the
disposal of the SAPS had identified him as
the co-ordinator of the targeted syndicate. His only details
available to the police
at the time were:
Sunil Shamdutt Singh (aka: Shoshova)
ID number: [6..........]
Employment: Self Employed (owner of a
car wash in Ladysmith)
Residential Address: House number:
[3.....], road [7.....], unit [….], [C.....], Durban
Additional
Residential Address: in Ladysmith still to be confirmed.
[4]
In motivation for the
operation the application highlighted that the syndicates operating
in the area were already involved in incidents
of serious violence,
including the murder of two truck drivers and the rape of a woman
passenger. Conventional investigation techniques
had thus far failed
in detecting the crimes and apprehending the main role players. The
syndicates were also suspected of being
involved in seven other
incidents that were under investigation ranging from truck
hijackings, armed robbery and attempted murder.
Only one armed
robbery conviction had been secured.
[5]
The main challenge in
apprehending the culprits was that the incidents occurred randomly,
usually in the evenings, anywhere in a
long stretch on the N3
highway, thus making it difficult for the police to know in advance
exactly where the crime would be committed.
Although the secondary
targets like the spotters, guards and robbers were apprehended on a
regular basis, it was difficult to secure
the convictions of the main
role players because they were not usually physically present at the
scene of the crimes, and it was
difficult to prove their involvement
in the criminal activities. The failure to arrest the main role
players meant that the market
was not eliminated because those
secondary targets were easily replaced once convicted and the
syndicate would continue with its
activities.
[6]
In order to effectively
penetrate the syndicate the SAPS wished to utilise an ‘in place
informer’ and a trap agent.
The terms of reference were: The
agent’s simulated role would be to transport the stolen goods.
The agent and informer would
only be contacted after the incident had
occurred and thus would not be aware beforehand of the exact times
and dates the incidents
were to take place. The trap agent and
informer would also not create a new market within the syndicate but
would continue with
already existing activities. As the syndicates
worked mainly after hours, a prior written authorization in terms of
s 252A of the
Act for each incident would not be obtained, but
feedback would be obtained the following day. Captain Ungerer was
identified to
be the project manager of the operation.
[7]
The Director of Public
Prosecutions (DPP) approved the application for the operation and
issued the following guidelines:
‘
a)
The informer which is currently deployed will not testify and will at
a later stage be removed from the investigation.
b)
Attempts will be made to secure the services of a second undercover
agent.
c)
The agent shall be provided with equipment to enable him to request
that the members of the team intervene should it appear that
the
safety of any person is threatened.
d)
The agent and the informer shall become involved in pre-existing
criminal schemes.
e)
The statements and plea agreements of the convicted members of the
syndicate will be submitted to me.
f)
If and when new information becomes available justifying the
continued execution of the undercover operation the same must be
submitted to me.
g)
The operation was verbally authorised on 16 August 2007 for the
period 16 August to 24 August 2007. During this period the agent
and
informer may transport stolen goods for the members of the syndicate.
h)…’
The
initial period was extended on several occasions with certain minor
amendments and the operation eventually terminated in February
2008.
[8]
Sergeant Smith was
chosen to be the agent. A 4 ton truck was obtained and its load area
was covered with a canvas. It was fitted
with three video recording
cameras, one in the cab, one in the loading area and one at the rear.
It was also fitted with a Tracker
device which was linked to a police
computer by means of which the position of the truck could at all
times be determined.
[9]
Smith
indeed infiltrated the syndicate. He was given a pseudonym called
Darryl. It was arranged that he would be introduced to one
of the
members of the syndicate, named Oscar
[1]
by one Lazarus (called Laz), who was apparently driving a truck on
behalf of the syndicate transporting the stolen wheels. It seems
Laz
had turned against his partners in crime but his motive is immaterial
for the purposes of this judgement. Laz indeed introduced
Smith to
Oscar who was at the time detained at the SAPS in Pinetown. Laz told
Oscar that Smith would take over from him as a driver
because Laz’s
wife was complaining about his working hours. Oscar had no problem
with the arrangement and in due course contacted
Smith and further
details of his involvement were discussed at a later date at Oscar’s
home. On a separate occasion Smith
was also introduced to the first
appellant.
[10]
Through
Smith’s involvement in the six incidents the appellants were
ultimately arrested and indicted on 20 counts ranging
from
racketeering
[2]
, robbery with
aggravating circumstances
[3]
,
corruption
[4]
, kidnapping,
unlawful possession of a firearm, attempted murder and money
laundering
[5]
. They were
convicted and sentenced as follows:
First appellant:
Count
1: Racketeering – sentenced to five (5) years imprisonment to
run concurrently with the sentences imposed on Counts
6, 10, 13 and
14;
Count
5: Corruption – sentenced to eighteen (18) months imprisonment
to run concurrently with the sentences imposed on Counts
6, 10, 13
and 14;
Count
6: Robbery – sentenced to fifteen (15) years imprisonment to
run concurrently with the sentence imposed on Count 10;
Count
10: Robbery – sentenced to fifteen (15) years imprisonment to
run concurrently with the sentence imposed on Count 6;
Counts
12-14: Robbery – sentenced to fifteen (15) years imprisonment
in respect of each count, with the sentences imposed
on Counts 12 and
13 to run concurrently and along with ten (10) years of the sentence
imposed on Count 14;
Counts
16-20: Money laundering – sentenced to one (1) year
imprisonment in respect of each count.
Third Appellant:
Count
1: Racketeering – sentenced to five (5) years imprisonment to
run concurrently with the sentence in Count 6;
Count
6: Robbery – sentenced to fifteen (15) years imprisonment;
Counts
7-8: Kidnapping – sentenced to 3 years imprisonment in respect
of each count to run concurrently with the sentence
in Count 6;
Count
10: Robbery – sentenced to fifteen (15) years imprisonment to
run concurrently with the sentence in Count 14;
Count
11: Kidnapping – sentenced to three (3) years imprisonment to
run concurrently with sentences in Counts 10 and 14;
Count
14: Robbery – sentenced to fifteen (15) years imprisonment to
run concurrently with sentence in Count 10;
Count
15: Unlawful possession of a firearm – sentenced to three (3)
years imprisonment to run concurrently with the sentences
in Counts
10 and 14;
Counts
16-17: Money laundering – sentenced to one (1) year
imprisonment on each count to run concurrently with the sentences
in
Counts and 10 and 14.
Fourth Appellant:
Counts
13-14: Robbery – sentenced to fifteen (15) years imprisonment
in respect of each count.
The
first
appellant
was sentenced to an effective term of 35 years imprisonment whilst
the third and fourth appellants were sentenced to effective
terms of
30 years imprisonment. They now appeal to this Court with leave of
the trial court.
The
Convictions
[11]
All the evidence which
led to the convictions of the appellants was gathered during the
operation. Smith’s main role was to
convey the wheels that had
been removed from the trucks to a specified address and he would be
paid for his effort. He did not
initiate any of the criminal
activities. He disclosed his movements and made several reports to
the investigation team whenever
he could after each incident,
including all the payments given to him for each transaction. At all
times during the six incidents
the video cameras and the tracking
device were activated.
[12]
During
the trial the admissibility of the evidence was challenged on grounds
that it did not satisfy the requirements of s 252A
of the Act
[6]
and
thus fell to be excluded. The challenge was based on the following
grounds:
a) The conduct of the DPP
in authorising the agent to involve himself in further criminal
conduct after the identity of the syndicate
members had been
established endangered the safety of the public and the maintenance
of public order.
b) The conduct of the
agent went beyond providing an opportunity to commit an offence.
c) The degree of deceit,
trickery and misrepresentation used by the agent was aimed at falsely
implicating the accused.
d) The agent failed to
adhere to the guidelines set down by the DPP.
e)
The original information given to the DPP was misleading.
[13]
The trial court found
that the operation served the interests of the public at large, which
benefit by far outweighed risks to Smith
and potential victims of the
offences which were committed. The trial court regarded as convincing
the evidence of Captain Ungerer
that the ordinary methods of
investigation and policing were ineffective in dealing with the
offences. It dismissed the grounds
on which the evidence was
challenged, admitted the evidence and convicted the appellants on
most of the counts.
[14]
In this appeal the
appellants do not challenge the merits of the convictions and have
since disavowed any reliance on s 252A of
the Act. They now concede
that Smith was never seriously challenged on grounds that his conduct
went beyond providing the appellants
with an opportunity to commit an
offence. Consequently they concede that the conduct of the agent did
not go beyond providing an
opportunity to the appellants to commit
the offences. The appeal is based solely on s 35(5) of the
Constitution which provides:
‘
Evidence
obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would
render the
trial unfair or otherwise be detrimental to the administration of
justice.’
[15]
The reliance on s 35
(5) of the Constitution is also limited in that it is not submitted
that the alleged rights violations rendered
the trial unfair. The
complaint is restricted to a contention that the alleged violations
were detrimental to the administration
of justice. Even on that
ground, the appellants do not contend that the rights violations
affected the rights of the appellants
in anyway. Instead the
complaint relates to the rights of the public at large. It is alleged
that the conduct of the State was
detrimental to the administration
of justice in that it undertook the operation whilst aware that
members of the public had already
been exposed to serious violence,
and that it continued with the operation whilst aware of a real
possibility of further exposure
to such violence. In support of that
submission the appellants refer to the incidents of violence that had
already been perpetrated
by the syndicates, where the victims were
hijacked and robbed, and where a female victim was raped. The State
on the other hand
contends that the aim of the undercover operation
was to protect the very same public the appellants contend were
exposed to danger,
by ensuring that all the members of the syndicate,
including the main role players would be arrested and convicted
.
[16]
The
use of undercover agents by the police, both for the prevention and
the detection of crime, is long established, and is acceptable
in our
Constitutional democracy. Section 35(5) of the Constitution
does not provide for automatic exclusion of unconstitutionally
obtained evidence. Evidence must be excluded only if it (a) renders
the trial unfair; or (b) is otherwise detrimental to the
administration
of justice. The enquiry as to whether the admission of
evidence would be detrimental to the administration of justice
centres around
public interest. Since the enquiry is purely a legal
question, the question of the incidence and quantum of proof required
to discharge
the onus of proof does not arise.
[7]
It essentially involves a value judgment.
[8]
In
Key
v Attorney - General, Cape Provincial Division
the Constitutional Court stated:
‘
In
any democratic criminal justice system there is a tension between, on
the one hand, the public interest in bringing criminals
to book and,
on the other, the equally great public interest in ensuring that
justice is manifestly done to all, even those suspected
of conduct
which would put them beyond the pale.’
[9]
In
Mthembu
v The State
[10]
this court stated:
‘
.
. . Public policy, in this context, is concerned not only to ensure
that the guilty are held accountable; it is also concerned
with the
propriety of the conduct of the investigating and prosecutorial
agencies in securing evidence against criminal suspects.
It involves
considering the nature of the violation and the impact that evidence
obtained as a result thereof will have, not only
on a particular
case, but also on the integrity of the administration of justice in
the long term. Public policy therefore sets
itself firmly against
admitting evidence obtained in deliberate or flagrant violation of
the Constitution. If on the other hand
the conduct of the police is
reasonable and justifiable, the evidence is less likely to be
excluded - even if obtained through
an infringement of the
Constitution.’
[17]
What
has to be balanced is on the one hand, respect for the Bill of
Rights, particularly by law enforcement agencies, and, on the
other,
respect for the judicial process, particularly by the man in the
street. This is a delicate process since over-emphasis
of the former
would lead to acquittals on what the public would perceive as
technicalities whilst over-emphasis on the latter would
lead at best
to a dilution of the Bill of Rights and at worst to its provisions
being negated.
[11]
[18]
A
conspectus of the various cases shows that the factors that may be
taken into account to determine whether the reception of evidence
is
detrimental to the administration of justice are the bona fides of
the investigation,
[12]
the
nature and seriousness of the violation of the accused’s
rights,
[13]
considerations of
urgency and public safety,
[14]
the availability of alternative, lawful means of obtaining the
evidence in question,
[15]
the
deterrent function of the courts in excluding improperly obtained
evidence,
[16]
the nature of
the evidence,
[17]
and the fact
that the evidence would inevitably have been discovered even if
improper means have not been employed.
[18]
All those factors are merely guidelines and the list is not
exhaustive. In the end every case depends on its own facts.
[19]
As the State has
contended, the appellants’ attack on the operation can simply
be dismissed on the basis that it was meant
to protect the very
public alleged to have been exposed to violence. The information at
the disposal of the SAPS showed that the
crimes perpetrated by the
group were becoming increasingly violent. Highway patrols had proven
to be ineffective because the crimes
were committed at random times
and anywhere along the N3 highway, and it proved to be difficult to
detect where and when the next
crime would be committed. The wheels
were not removed at the spot of the hijacking but at secluded places
which were impossible
to detect beforehand. The crimes were committed
at night and the victims would be woken up at gunpoint and instructed
not to look
at the robbers, thus making it difficult for the victims
to identify the perpetrators of the crime. The actions of the
syndicate
did not only expose the victims of the hijackings to
serious criminal conduct, but also had huge implications for the
country’s
economy in that the trucks travelling the major
highways of this country, including the N3 are used to convey goods
between the
manufacturers or suppliers to the several retailers. The
delays in the transportation of those goods would in turn affect the
consumers
who are mostly members of the general public.
[20]
The contention that the
SAPS should have ceased the operation after the first incident, holds
no water because had that occurred,
the first appellant who was the
master mind of the syndicate would not have been convicted. The trial
court acquitted him on the
first incident. At the time Smith was
appointed, the syndicate was already in operation and there is no
evidence on the probabilities
that the criminal activities would
cease after the first incident if the police had arrested the
identified culprits. Importantly,
even though the operation
continued, Smith did not initiate any of the offences and did not
play any role beyond what had already
been planned by the members of
the syndicate. He merely followed orders. Someone else had played the
role before he infiltrated
the syndicate and had he left, he would
have been substituted. There was thus no close casual connection
between the rights violation
and the criminal acts of the syndicate
that exposed the members of the public to serious acts of violence.
The sophisticated nature
of the syndicate is illustrated by the fact
that in spite of the lengthy period within which Smith infiltrated
it, he was not able
to uncover to whom the first appellant sold the
wheels.
[21]
It is not suggested
that the nature of the operation was such that it was conducted in a
flagrant disregard of the Constitutional
rights of possible victims
or other members of the public. On the contrary the evidence shows
that the SAPS and the DPP were very
cautious. Smith performed his
task in terms of guidelines approved by the DPP and under their
supervision and that of the investigation
team. He was obliged to
report his activities to the investigation team and the team was
obliged to comply with the guidelines
set by the office of the DPP.
On the occasions that Smith deviated from the letter of the
guidelines, he did so in order to save
the integrity of the operation
and the investigation team was kept informed of those minor
deviations.
[22]
Public
opinion is one of the relevant considerations on whether rights
violations are detrimental to the administration of justice
[19]
– and it is unacceptable to the public when courts exclude
evidence indicating guilt particularly in the current state of
endemic violent crime in all parts of our country
[20]
.
Had Smith not infiltrated the syndicate, the probabilities are that
the criminal activities would have continued. I thus do not
hesitate
to find that the public would baulk at the idea that the law
enforcement agencies failed to take bona fide measures aimed
at
effective detection of such an organised crime syndicate because of
the fear that there may be danger to the public, specifically
in the
present circumstances where the crimes would have taken place
irrespective of the operation. Indeed the reaction would be
one of
‘shock, fury and outrage’.
[21]
The administration of justice thus outweighed the risk to potential
victims and the public. The challenge on the rights violations
must
therefore fail and the convictions stand.
Sentence
[23]
The task of imposing an
appropriate sentence is in the discretion of the trial court. A court
of appeal may only interfere if the
sentence imposed is shockingly
inappropriate. The first appellant appeals against sentence on the
basis that the cumulative sentence
of 86 and a half years and the
effective term of 35 years are out of proportion with the first
appellant’s wrong doing, are
shockingly inappropriate and
differ markedly from a sentence this Court would have imposed. It is
also submitted that the trial
court should have taken into
consideration as a mitigating factor the fact that the first
appellant was not physically involved
in any of the robberies, but
simply served as an outlet for the wheels which were stolen from the
hijacked trucks.
[24]
The first appellant was
convicted of 11 of the 20 counts he was facing. Most of the incidents
of robbery occurred on different dates.
He was not an arm’s
length purchaser of the wheels as suggested by his counsel but was in
contact with the group during the
various stages of the crimes and
determined where the wheels would be delivered and what amount should
be paid to the members of
the syndicate. He was the mastermind of the
syndicate.
[25]
The third appellant was
physically involved during the perpetration of most of the offences.
The role of the fourth appellant was
somewhat limited in that he
became involved in the syndicate at a later stage and was
consequently only convicted on two counts.
[26]
The trial judge was
mindful of the cumulative effect of the sentences and the potential
severity thereof and he ordered that some
of the sentences should run
concurrently. He was also mindful of the fact that the racketeering
and money laundering charges flow
from the various predicate
offences. However, the cumulative effect of the respective sentences
imposed are, as conceded by the
State, disproportionately harsh, such
that this Court should interfere. The order to be granted in this
regard accordingly has
as its sole objective an amelioration of the
cumulative effect of the individual sentences imposed.
[27]
I therefore make the
following order:
1.
The appeal against the
convictions is dismissed
2.
The appeal against the
sentences is upheld partially to the extent reflected below:
2.1
First Appellant
a)
the sentence imposed in
count 6 is ordered to run concurrently with sentences in counts 10,
12, 13 and 14;
b)
the sentence imposed in
count 1 is ordered to run concurrently with the sentences in counts
5, 16, 17, 18, 19 and 20;
c)
the first appellant is
therefore sentenced to an effective term of 20 years imprisonment.
Third Appellant
a)
the sentences imposed
in counts 6, 7, 8, 10, 11, 14 and 15 are ordered to run concurrently;
b)
the sentences imposed
in counts 1, 16 and 17 are ordered to run concurrently;
c)
the third appellant is
therefore sentenced to an effective term of 20 years imprisonment.
Fourth Appellant
a)
the sentences imposed
in counts 13 and 14 are ordered to run concurrently;
b)
the fourth appellant is
therefore sentenced to an effective term of 15 years imprisonment.
___________________
ZLL
Tshiqi
Judge
of Appeal
APPEARANCES
For
First Appellant:
J E Howse with S Marimuthu
Instructed
by:
Leo Govender Attorneys, Durban
C/o Honey Attorneys, Bloemfontein
For
Respondent:
N Moosa
Instructed
by:
Director of Public Prosecutions, Pretoria
Director of Public
Prosecutions,
Bloemfontein
[1]
Oscar and
the second appellant are deceased.
[2]
Section
2(1)(e) read with ss 1,2(2) and 3 of
Prevention of Organised Crime
Act 121 of 1998
.
[3]
Section 1
of the
Criminal Procedure Act 51 of 1977
read with provision of
s
51(2)
of
Criminal Law Amendment Act 105 of 1997
.
[4]
Section
4(1)(b)(iv)
read with
ss 1
,
2
,
4
(2),
24
,
25
,
26
(1)(a) of Prevention and
Combatting of Corrupt Activities Act 12 of 2004.
[5]
Section
4 of Act 121 of 1998.
[6]
Section
252A provides:
‘
(1)
Any law enforcement officer, official of the State or any other
person authorised thereto for such purpose (hereinafter referred
to
in this section as an official or his or her agent) may make use of
a trap or engage in an undercover operation in order to
detect,
investigate or uncover the commission of an offence, or to prevent
the commission of any offence, and the evidence so
obtained shall be
admissible if that conduct does not go beyond providing an
opportunity to commit an offence: Provided that
where the conduct
goes beyond providing an opportunity to commit an offence a court
may admit evidence so obtained subject to
subsection (3).’
[7]
D T Zeffert
and A P Paizes
The
South African Law of Evidence
2 ed (2009) at 757.
[8]
S v
Pillay & others
[2003] ZASCA 129
;
2004 (2) SACR 419
at 447H.
[9]
Key v
Attorney-General, Cape Provincial Division
[1996]
ZACC 25
;
1996
(4) SA 187
(CC) para 13.
[10]
Mthembu
v S
[2008] ZASCA 51
;
2008 (2) SACR 407
(SCA at para 26.
[11]
S v
Mphala
1998 (1) SACR 654
(W) at 657 G-H; Zeffert and Paizes at 741; S v
Tandwa
[2007] ZASCA 34
;
2008 (1) SACR 613
(SCA) at para 118.
[12]
Mthembu
v S
supra;
S
v Tandwa
supra; Zeffert and Paizes at 747.
[13]
Mthembu and
Tandwa supra; Zeffert and Paizes at 748.
[14]
Zeffert and
Paizes at 749.
[15]
Ibid at
751.
[16]
Ibid at
752.
[17]
Ibid at
755.
[18]
Ibid at
755.
[19]
S v
Tandwa
2008 (1) SACR 613
(SCA) at 649.
[20]
S v
Ngcobo
1998 (10) BCLR 1248
(N) at 1254G.
[21]
S v Ngcobo
supra.