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[2015] ZASCA 52
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Van Willing and Another v S (109/2014) [2015] ZASCA 52 (27 March 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 109/2014
In
the matter between:
ANTONIO VAN
WILLING
................................................................................
FIRST
APPELLANT
FAREEZ
MOHAMED
....................................................................................
SECOND
APPELLANT
and
THE
STATE
...................................................................................................................
RESPONDENT
Neutral
Citation:
Van Willing &
another v The State
(109/2014)
[2015] ZASCA 52
(27 March 2015)
Coram:
Mpati
P, Bosielo JA and Schoeman, Van der Merwe and Meyer AJJA
Heard:
6 March 2015
Delivered:
27
March 2015
Summary:
Criminal
law – Admissibility of hearsay evidence in terms of s 3(1)(c)
of Act 45 of 1988 where person who made the statement
deceased –
whether evidence of single identifying witness credible and reliable
– effect of failure of appellants to
testify.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Rogers J sitting as court
of first instance).
1 The appeal against
the conviction and the sentence of each of the appellants is
dismissed.
JUDGMENT
Schoeman
AJA (Mpati P, Bosielo JA, Van der Merwe and Meyer AJJA concurring)
[1]
This appeal stems from an incident that occurred on 27 June 2012 when
Lance Harrison (the deceased) was shot and wounded at
Steenberg, Cape
Town. He succumbed to his wounds shortly afterwards. Both
appellants were charged with murder and the unlawful
possession of a
firearm or firearms and ammunition in contravention of
ss 3
and
90
of
the
Firearms Control Act 60 of 2000
respectively. The
appellants were both convicted of murder and the second appellant,
was in addition, convicted of the two
contraventions of the
Firearms
Control Act. The
appellants were each sentenced to life imprisonment
on the murder charge, while the second appellant was, in addition,
sentenced
to two years’ imprisonment for the illegal possession
of the firearm and one years’ imprisonment for the unlawful
possession
of ammunition. The court below granted leave to
appeal to this court both appellants against their convictions and
sentences.
[2]
Numerous witnesses testified, but the convictions of the appellants
were based on the evidence of an identifying witness, Ms
Petersen,
placing the two appellants on the scene where the shooting took place
and statements made by the deceased first to Ms
Erica Petersen and
later to Constable Ncedo Ndyamara. The two appellants did not testify
in their own defence, but both called
witnesses to confirm their
alibis.
Grounds of appeal
[3]
The criticism by the appellants of the judgment of the court below
centred on (a) the acceptance of the evidence of Ms Petersen
and
Const. Ndyamara, arguing that the court paid lip service to the
applicable cautionary rules, in that it did not approach their
evidence with the necessary caution when both were single witnesses
in respect of part of their evidence. Ms Petersen was furthermore
an
identifying witness, whose evidence must be approached with caution
on that score as well; (b) the ruling that the hearsay evidence
of
the deceased as to the identity of his assailants was admissible; (c)
the submission that if the court was correct in finding
that the
first appellant was on the scene, the state failed to prove that he
had shot the deceased or that he had made common cause
with the
shooter; and (d) the argument of both appellants that the court below
erroneously rejected their alibis.
Approach on
appeal
[4]
It is appropriate to reiterate the approach of a court of appeal
regarding the factual and credibility findings of the court
below as
set out in
R
v Dhlumayo.
[1]
The
court of appeal must keep in mind that the trial court saw the
witnesses and could observe and assess their conduct. If there
was no
misdirection as to the facts, the point of departure is that the
trial court’s findings were correct. The court of
appeal will
only reject the finding of the trial court if it is convinced that
the finding was erroneous. If there is doubt, the
findings of the
trial court must stand.
[2]
However, it is not only the trial court’s findings that
are important but also the reasons for adopting those findings
which
must be set out in the judgment.
[3]
[5]
The judgment of the court below was comprehensive and detailed,
setting out the reasons for all the findings.
The evidence
[6]
The State’s case is that the deceased lived on the property of
Ms Petersen in a bungalow in the back yard. On the night
in question
a man called the deceased’s name from the street. Ms
Petersen recognised the voice as that of a certain
‘Tony’.
She recognised his voice as she often saw him when he visited her
neighbour’s daughter with whom he was
involved in a
relationship. As Tony continued calling, Ms Petersen called the
deceased from his bungalow. The deceased went to
the front door and
addressed ‘Tony’ asking him what he wanted. The person on
the other side of the door said that he
must come out as ‘ons
soek jou stem’.
[4]
She did
not know what that meant. She heard a second voice say that the
deceased must come out and the deceased then asked
(while speaking
Afrikaans): ‘What is it Fareez?’ and ‘Fareez, why
do you want my voice?’. The deceased
sounded anxious and
when she peeped through her bedroom window she saw two men outside
the gate, one of whom was Tony and the other
a person she only knew
from the neighbourhood but did not know his name. She identified the
first appellant as ‘Tony’
and the other man as the second
appellant. While the two men were talking with the deceased, the
first appellant entered the yard
and walked towards the house.
Thereafter the second appellant entered the yard while he had his
right hand in his pocket. They
asked the deceased to come outside.
Ms Petersen left her vantage point and was on her way to the front
door to remonstrate
with the two men as they were causing a
disturbance, when gunshots rang out. The deceased cried out (in
Afrikaans): ‘What
are you doing now Fareez?’ Further
shots rang out and she jumped onto the bed to protect her son. After
the deceased had
called for help she went to him and saw that he had
stumbled back into the house. She went to him, held him and asked who
had shot
him. The deceased said that it was Tony from next door and
then added that it was not Tony who had shot him, but Fareez.
[7]
Const. Ndyamara was the first policeman on the scene, a short while
after the incident. He found the deceased lying on the floor
in a
pool of blood. He asked the deceased who had shot him and the
deceased first said ‘Tony’. When he asked again
the
deceased said ‘Antonio’. The deceased furthermore said
that ‘Raez’ was the second person. The deceased
said that
Antonio lived in Wicht Court. At this stage the deceased was weak and
Const. Ndyamara could not hear distinctly what
he had said.
[8]
The investigating officer, Const. Heinrich Sampson, arrested the two
appellants. On 5 July 2012, he went to Wicht Court
to arrest
the first appellant who, according to an informant, lived in a flat.
He found four males in the flat and asked for their
names. None was
called Tony and the first appellant gave him a false name. After he
had obtained a physical description of the
suspect, he returned to
the flat where he found the same four males present. He then
confronted the first appellant who confirmed
that he was Antonio van
Willing. Acting on directions of a fellow policeman, Const. Sampson
went to Wicht Court in search of Fareez.
At Wicht Court he told the
second appellant’s grandmother and sister that they were
looking for Fareez. Later the next day
the second appellant handed
himself over to the investigating officer.
[9]
Const. Ndyamara made a statement that same evening in which he stated
that the deceased mentioned Tony and Raez as the names
of the persons
that were involved in the shooting and Wicht Court as the name of a
block of flats where the first appellant resided.
[10]
The post mortem examination of the deceased revealed that the
deceased had sustained four gunshot wounds of which two were
fatal.
One of these wounds entered the front right chest area which
perforated the apex of the right lung. The other wound entered
the
right chest cavity from the back, perforated the right and middle
lobes of the right lung and the subclavian vein. Both these
wounds
caused significant haemorrhaging.
[11]
A photographic identity parade was held after Ms Petersen had
intimated to the investigating officer that she would not participate
in an identity parade where she had to face the persons she saw on
the night of the incident. Const. Samson selected eight photographs
of persons with the same gender, race, skin colour, hairstyle and
similar features to the second appellant. He sealed those photographs
in an envelope together with the photo of the second appellant and it
was stored in the exhibits storeroom. At the photographic
identity parade Ms Petersen pointed out a photograph of the second
appellant.
[12]
The evidence regarding this identity parade was led during a
trial-within-a-trial. It was, however, decided that it was not
only
the admissibility that would be tested during cross-examination, but
also the issue of the reliability of the identification
and the
weight that should be attached to the evidence. A video recording was
made of the identification parade which was admitted
in evidence. The
trial court studied the video recording. The second appellant’s
counsel, conceded during the trial that
there was no evidence of
deliberate tampering with the photographs. All the photographs were
available during the trial and the
trial court found that the
identification of the second appellant was both proper and reliable.
[13]
In
S
v Moti
[5]
this
court expressed the view that it would be improper to have a
photographic identity parade rather than an identity parade after
the
arrest of a suspect. In that instance the issue was whether a
photo-identification of the appellant before his arrest
was proper
and reliable. This court found that there was no impropriety
attached to the photo- identification.
[14]
I am of the view that the photographic identity parade was properly
held. The reasons for resorting to a photographic identity
parade
were valid due to the accepted fact of gang activities in the area
where the shooting of the deceased had occurred and Ms
Petersen’s
realistic fears of reprisal. Ms Petersen initially refused to make a
statement to the police as she feared involvement
due to the gang
activities in the area where she resided. The view in
Moti
that a
photo-identification would have been improper had the suspect already
been arrested was
obiter
as
the issue did not arise in that matter. There is an additional
safeguard in this instance where the coincidence of a person
named
Fareez being one of the perpetrators and Ms Petersen pointing out an
innocent person named Fareez, is just too remote and
improbable.
[15]
The presiding judge called two witnesses in terms of the provisions
of
s 186
of the
Criminal Procedure Act 51 of 1977
: Carmen Abrahams, a
lodger in Ms Petersen’s premises at the time and Nadine
Harrison, the widow of the deceased. Ms Abrahams
ostensibly
contradicted Ms Petersen in respect of the sequence of events.
Furthermore, she tesitifed that did not hear the
deceased say
anything after he had been shot. Mrs Harrison testified that she was
called to the scene by Ms Abrahams who informed
her that the deceased
had been shot. The deceased then spoke to her but did not disclose
who had shot him (she did not ask) and
he also said that he did not
know why he had been shot.
[16]
The two appellants did not testify, but each called a witness to
confirm their respective alibis. During cross-examination
of Ms
Petersen it was put to her that the appellants denied that they were
the two persons who were at the scene where the shooting
took place.
Paradoxically, the first appellant furthermore disputed that the
evidence established that the person who Ms Peteren
identified as
‘Tony’ and who was not the shooter, made common cause
with the shooter.
Evaluation
The
cautionary rules
[17]
Counsel for the appellants argued that because Ms Petersen was
contradicted by Ms Abrahams, her evidence should have been rejected.
This loses sight of the correct approach in evaluating the evidence
of witnesses in respect of self-contradictions and contradictions
between witnesses. In
S
v Oosthuizen,
[6]
Nicholas
J said:
‘
There
is no reason in logic why the mere fact of a contradiction, or of
several contradictions, necessarily leads to the rejection
of the
whole of the evidence of a witness.
The
subject is considered in Wigmore on
Evidence
vol III chap 35
(“Specific Error (Contradiction)”) and chap 36
(“Self-contradiction”). What follows is drawn
largely
(although it should be said, by way of caution, not exclusively)
from those chapters.
Where
one statement contradicts another, both cannot be true; one of them
must be false.
Where
the statements are made by different persons, the contradiction in
itself proves only that one of them is erroneous: it does
not prove
which one. It follows that the mere fact of the contradiction does
not support any conclusion as to the credibility of
either person. It
acquires probative value only if the contradicting witness is
believed in preference to the first witness, that
is, if the error of
the first witness is established.’
[18]
Ms Petersen was extensively cross-examined on her identification of
the two appellants. It was common cause that street lights
illuminated the scene and the light from the house also shone
outside. She was adamant that there was sufficient light to identify
the people in her yard. It was not denied that (a) the first
appellant had a relationship with Ms Petersen’s next door
neighbour’s
daughter and that he regularly visited there; or
(b) that the second appellant was on occasion in the street where Ms
Petersen
resides and she had previously seen him.
[19]
The court below formed a very favourable impression of Ms Petersen as
a witness. Such impression is borne out by a reading
of the record.
Her evidence was approached with caution, both as an identifying and
a single witness.
[7]
[20]
Ms Petersen was further corroborated by Const. Ndyamara in that the
deceased, shortly after he told Ms Petersen about the identity
of the
people who had shot him, also told Const. Ndyamara. Const. Ndyamara’s
virtually contemporaneous statement that the
deceased told him the
names of the perpetrators put paid to allegations of collusion or
conspiracies.
[21]
The court below found Ms Petersen to be a very good witness. There is
nothing in the record that belies that conclusion.
Const.
Ndyamara was similarly found to be a credible witness, which is also
borne out by the record. The assessment of the
witnesses can
therefore not be overturned on appeal.
Hearsay
evidence
[22]
The content of the statements made by the deceased to Ms Petersen and
Const. Ndyamara constitute hearsay. Prior to the introduction
of
s 3
of the
Law of Evidence Amendment Act 45 of 1988
,
such
statement could have been admissible as an exception to the general
principle that hearsay evidence is inadmissible, either
as a ‘dying
declaration’ or as part of the
res
gestae.
The admissibility of hearsay evidence, including hearsay evidence of
the sort under consideration here, is now regulated by the
said
section.
[8]
[23]
Section 3(1)(a)
provides that hearsay evidence is inadmissible unless each party
against whom the evidence is to be adduced agrees to the admission
thereof as evidence at such proceedings.
S 3(1)(c)
confers a
discretion on the court to allow hearsay evidence if it is in the
interests of justice and sets out the factors that
have to be taken
into account by the court when making such a determination. These
factors are:
‘
.
. .(i) the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for
which the evidence is tendered;
(iv) the probative
value of the evidence;
(v) the reason why
the evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
(vi) any prejudice
to a party which the admission of such evidence might entail; and
(vii) any other
factor which should in the opinion of the court be taken into
account. . .’
I will discuss these
factors seriatim in relation to the evidence presented by the State.
The
nature of the proceedings
[24]
In
Ramavhale,
[9]
Schutz
JA held that '. . . a Judge should hesitate long in admitting or
relying on hearsay evidence which plays a decisive or even
significant part in convicting an accused, unless there are
compelling justifications for doing so.' However, as was expressed
in
S
v Shaik & others
[10]
,
‘. . . sight should not be lost of the true test for the
evidence to be admitted, and that is whether the interest of justice
demands its reception.’
[25]
The admission of the statements had the effect that it corroborated
the evidence of an identifying witness. Although the statements
played a part in the conviction of the appellants, it was found
to be in the interests of justice to allow the evidence.
The
nature of the evidence
[26]
The probative value of the hearsay evidence depends on the
credibility of the deceased. The question must thus be asked
whether his evidence identifying the perpetrators would be reliable.
In this instance the deceased reported to Ms Petersen
that Tony and
Fareez were the persons who had shot him, but it was Fareez who was
the shooter. The reliability of this evidence
was enhanced by
the fact that Ms Petersen testified that she had seen the people with
those names outside the house, talking to
the deceased immediately
before the shots rang out. The fact that those were the names that
were mentioned is further corroborated
by the evidence of Const.
Ndyamara that the name of the first appellant as well as his address,
‘Wicks Court’ was mentioned
to him. Later investigation
confirmed that the appellants either lived or had connections with
Wicht Court. Const. Ndyamara’s
testimony that the deceased
mentioned the name ‘Raez’ does not detract from the
reliability of the deceased’s
statement as it is common cause
that the deceased was very weak at that stage and Const. Ndyamara had
difficulty in hearing the
deceased. Phonetically, ‘Raez’
and ‘Fareez’ are not that dissimilar.
The
purpose for which the evidence was tendered
[27]
The evidence was tendered by the State as corroboration of the
evidence of Ms Petersen that the two appellants were at the
scene
immediately prior to the shots being fired. It was furthermore
presented as proof that the second appellant was the shooter.
The
probative value of the evidence
[28]
To paraphrase
Ramavhale:
the
enquiry relating to the probative value of the evidence should
proceed under two heads, namely (a) the reliability and completeness
of Ms Petersen and Const. Ndyamara’s transmission of the
deceased's words, and (b) the reliability and completeness
of
whatever it was that the deceased did say.
[11]
[29]
With regard to (a), both Ms Petersen and Const. Ndyamara were
reliable witnesses and their respective testimonies regarding
what
the deceased said to them were in line with the identification of the
two appellants by Ms Petersen. Although Const. Ndyamara
testified
that the deceased mentioned ‘Raez’, it was also evident
that the deceased was weak at the time and he was
speaking softly. It
is probable that Const. Ndyamara did not hear the name clearly or
correctly.
[30]
With regard to (b), the reliability and completeness of what the
deceased said to the two witnesses must be assessed against
the
background of the evidence of Ms Petersen, which the court below
accepted as credible, that she saw the two appellants at the
scene.
The name Tony was also repeated to Const. Ndyamara.
The
reason why the deceased did not give the evidence
[31]
This item is uncontentious.
Prejudice
[32]
In
Shaik
it
was stated that the prejudice mentioned in this regard, is not the
prejudice that an accused may be convicted.
[12]
No
prejudice was submitted as a reason why the statement should not be
admitted in this case. The usual prejudice is that the person
could
not be cross-examined. This however is prejudice only if the case of
the appellants could be advanced by cross-examination.
[13]
It
was not argued that it was the position in the instant matter.
Any
other factor
[33]
No other factor has been mentioned as being important in deciding
whether the statements should be admitted or not.
Conclusion
in respect of the admissibility of the hearsay evidence
[34]
I can paraphrase what has been said in
Shaik
in that, having
regard to the high probative value of the evidence and the risk that
the appellants would be prejudiced by its admission
was slim, the
admission of the hearsay in evidence was in the interest of justice,
notwithstanding the fact that its admission
was sought in criminal
proceedings and such evidence is of importance to the State's case.
Furthermore, the court below dealt with
all these factors and we have
not been referred to any misdirection.
Common
purpose
[35] The first
appellant argued that the state has failed to prove that the two
people present made common cause with each other
regarding the
shooting. According to this argument, it was only the person called
Fareez who was mentioned as the shooter by the
deceased. Furthermore,
the correct inference from the evidence of Ms Petersen was that it
was the person whom she identified as
the second appellant who had
his hand in his pocket who must have fired the shots. Therefore, it
was argued, there was no evidence
that they made common cause with
each other.
[36]
In
S
v Mgedezi & others,
[14]
Botha JA set out the prerequisites for a finding that people acted
with a common purpose in the context of a murder charge in the
absence of a prior agreement. These are that
the
first appellant must have been present at the scene where the
violence was being committed; he must have been aware of the assault
on the deceased; he must have intended to make common cause with
those who were actually perpetrating the assault; he must have
manifested his sharing of a common purpose with the perpetrators of
the assault by himself performing some act of association with
the
conduct of the others; and he must have had the requisite mens rea.
[37] In applying
these principles to the facts of the instant matter it is clear that
the first appellant was present at the scene
and he was aware of the
shooting. The witnesses could not explain what the phrase ‘Ons
soek jou stem’ means. However,
those were words uttered by both
the appellants at the scene and it was clear that both appellants
wanted the deceased to come
outside, in fact it was the first
appellant who first called the deceased and told him to come out.
Shortly thereafter the
shots rang out. Clearly the first appellant
associated himself with the further conduct of the second appellant.
There was no evidence
on the part of the first appellant, verbal or
otherwise, to indicate or show shock or surprise at the shooting of
the deceased.
After the deceased was shot four times the first
appellant and Fareez ran from the scene and the first appellant did
not report
the incident to anybody in authority nor to Ms Petersen or
the deceased’s wife. The court below put it thus:
‘
It
must be remembered that the shooting took place at a house next door
to the house where he used to visit his girlfriend. Petersen,
the
owner or landlady of the house, was not unknown to him. Nor was
Harrison [the deceased] (who addressed the first accused by
his
name). Since the first accused was not a stranger to the household,
one would have thought – if he was not there for
a nefarious
purpose and meant Harrison no harm—that after an unexpected and
shocking attack on Harrison he would have remained
and offered help
rather than fleeing.’
[38] It can be
argued on the same facts that the appellants went to the deceased’s
home with the pre-meditated plan to kill
the deceased. However, due
to the finding that the appellants acted with a common purpose, it is
not necessary to do so.
Failure
to testify
[39]
In
S
v Boesak
[15]
the
following was said.
‘
The
fact that an accused person is under no obligation to testify does
not mean that there are no consequences attaching to a decision
to
remain silent during the trial. If there is evidence calling for an
answer, and an accused person chooses to remain silent in
the face of
such evidence, a court may well be entitled to conclude that the
evidence is sufficient in the absence of an explanation
to prove the
guilt of the accused. Whether such a conclusion is justified will
depend on the weight of the evidence.
What
is stated above is consistent with the remarks of Madala J, writing
for the Court, in
Osman
and Another v Attorney-General, Transvaal
,
when he said the following:
“
Our
legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a
prima
facie
case, an accused who fails to produce evidence to rebut that case is
at risk. The failure to testify does not relieve the prosecution
of
its duty to prove guilt beyond reasonable doubt. An accused, however,
always runs the risk that, absent any rebuttal, the prosecution's
case may be sufficient to prove the elements of the offence. The fact
that an accused has to make such an election is not a breach
of the
right to silence. If the right to silence were to be so
interpreted, it would destroy the fundamental nature of
our
adversarial system of criminal justice.”'
(footnotes
omitted)
[40]
The appellants
both called witnesses to confirm their alibis. The improbability of
the evidence of their witnesses, coupled with
their own failure to
testify, had the result that such alibis were correctly rejected.
[41]
The evidence against the two appellants established a
prima
facie
case
against them. The evidence of the prosecution, sans any rebuttal from
the two appellants, thus proved the guilt of the appellants
beyond
reasonable doubt.
Sentence
[42]
The minimum sentencing provisions of
s 51
of the
Criminal Law
Amendment Act 105 of 1997
[16]
are applicable to the sentences imposed on the appellants. This means
that there have to be substantial and compelling circumstances
present for the trial court not to impose the prescribed minimum
sentence of life imprisonment, as it was found that the murder
of the
deceased by the appellants were premeditated and they were acting
with a common purpose.
[43]
S
v Malgas
[17]
is the starting point to determine whether the trial court was
correct in its assessment that there were no substantial and
compelling
circumstances present. The substantial and
compelling circumstances we were referred to in respect of the first
appellant
were: he was youthful at the time of the commission of the
offence, he was 23 years old; he had been using drugs for the
previous
five and a half years; and he has a young son aged seven
years. The second appellant was 22 years old when the offences
were
committed, he used tik, a dependence producing substance, and he
had been in custody for 14 months as an awaiting trial prisoner.
[44]
The
reason why youths’ ages are taken into consideration during the
sentencing process is because of their immaturity and
the possibility
that their judgment might have been impaired and therefore could bow
to peer or other undue pressure to commit
crimes. However, I
cannot find that the appellants, in the instant matter, were immature
or intellectually undeveloped. As
was remarked in
S
v Matyityi
[18]
a person of 20 years should show that he was immature to such an
extent that his immaturity would be a mitigating factor.
That was not
done in the instant matter. Similarly the appellants did not
show that their addiction to drugs had anything
to do with the
commission of the crime.
[45]
Murder is a heinous crime. In the instant matter it has taken on all
the characteristics of an assassination without the two
appellants
providing a motive for the killing.
[46]
No real substantial and compelling reasons were advanced why the
prescribed sentences were erroneously imposed.
[47] Accordingly the
following order is made in respect of both appellants:
The
appeal against the conviction and the sentence of each of the
appellants is dismissed.
______________________
I
SCHOEMAN
ACTING
JUDGE OF APPEAL
APPEARANCES
For Appellant: R
Cloete (First Appellant)
M
Calitz (Second Appellant)
Instructed
by:
Legal
Aid South Africa, Cape Town
Legal
Aid South Africa, Bloemfontein
For Respondent: K
Pillay (with him N Bell)
Instructed by:
Director of Public
Prosecutions, Cape Town
Director
of Public Prosecutions, Bloemfontein
[1]
R
v Dhlumayo & another
1948
(2) SA 677 (A).
[2]
S
v Robinson
&
others
1968 (1) SA 666
(A) at 675G-H.
[3]
S
v Nkosi
1993
(1) SACR 709
(A) AT 711E-G.
[4]
The direct English translation of this is ‘we want your
voice’.
[5]
S
v Moti
1998
(2) SACR 245
(SCA) at 255D-E.
[6]
S
v Oosthuizen
1982
(3) SA 571
(T) at 576A-C. This case was followed in
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
2000
(1) SA 1
(CC) para 124.
[7]
S
v Sauls & others
1981 (3) SA 172
(A) at 180E-G.
[8]
S
v Ramavhale
1996 (1) SACR 639
(A) at 647d-e.
[9]
At 649 C-D.
[10]
S
v Shaik & others
[2006] ZASCA 105
;
2007
(1) SACR 247
(SCA) para 171;
[2006] ZASCA 105.
[11]
S
v Ramavhale
at 649E-F.
[12]
Paragraph 177.
[13]
See
Shaik
para 177.
[14]
S
v Mgedezi & others
1989
(1) SA 687
(A) at 705I-706B.
[15]
S
v Boesak
2001
(1) SACR 1
[2000] ZASCA 25
para 24.
[16]
Section 51(1)
of the
Criminal
Law Amendment
Act
read
with
Part I
of Schedule 2 of the Act.
[17]
S
v Malgas
2001 (1) SACR 469 (SCA).
[18]
S
v Matyityi
2011
(1) SACR 40
[2010] ZASCA 127
(SCA) para 14;.