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[2015] ZASCA 84
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Hattingh v S (20099/2014) [2015] ZASCA 84 (28 May 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20099/2014
Not
Reportable
In
the matter between:
JUAN
HATTINGH
............................................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
citation:
Hattingh v The State
(20099/2014)
[2015] ZASCA 84
(28 May
2015)
Coram:
Cachalia, Majiedt, Petse and Zondi JJA and Gorven
AJA
Heard:
20 May 2015
Delivered:
28 May 2015
Summary
:
Sentence ─ imposition of ─ factors to be taken into
account ─ appellant convicted on 64 counts of fraud, one
count
of theft and one count of money laundering ─ minimum sentencing
provisions of the
Criminal Law Amendment Act 105 of 1997
not
applicable ─ period spent in prison awaiting trial being one of
the factors to take into account in determining appropriate
sentence
─ leave to appeal ─
s 16(1)(b)
of the
Superior Courts Act
10 of 2013
─ an appeal to this court against a decision of a
division of the high court on appeal to it competent only with the
special
leave of the Supreme Court of Appeal.
ORDER
On
appeal from: Free State Division of the High Court, Bloemfontein
(Rampai AJP and Monaledi AJ sitting as court of appeal):
The
following order is made:
1
The appellant is granted special leave to appeal in terms of
s 16(1)(b)
of the
Superior Courts Act 10 of 2013
against the
sentence imposed by the regional court, Bloemfontein in respect of
the 64 counts of fraud, confirmed on appeal by the
court a quo.
2
The appeal is upheld. The order of the court a quo is set aside and
substituted with the following order:
‘
The
appeal is upheld. The sentences imposed by the trial court in respect
of the counts of fraud are set aside and substituted as
follows:
(i)
On counts 1 to 64 the accused is sentenced to 12 years’
imprisonment.
(ii)
The sentence of six years’ imprisonment imposed in respect of
count 65 is ordered to run concurrently with the sentence
imposed in
respect of counts 1 to 64.
(iii)
The sentence is ante-dated to 23 May 2011.’
JUDGMENT
Petse
JA (
Cachalia, Majiedt and Zondi JJA
and Gorven AJA
concurring):
[1]
The appellant was convicted on his plea of guilty in the regional
court, Bloemfontein, on 64 counts of fraud, one count of theft
and
one count of money laundering in contravention of
s 4
(a)
of the
Prevention of Organised Crime Act 121 of 1998
.
[2]
Before the appellant pleaded to the charges the prosecutor informed
the trial court that the appellant was represented by counsel
and
intended pleading guilty to all counts and that to that end counsel
had prepared a written statement in terms of s 112(2)
of the
Criminal Procedure Act 51 of 1977 (CPA).
[3]
Thereafter the appellant pleaded guilty to all counts. The
appellant’s counsel then handed in the s 112(2) written
statement
and sought leave of the trial court to read its contents
into the record. At the outset the trial court, cognisant of the fact
that the charge sheet had made reference to the provisions of s
51(2)
(a)
of the Criminal Law Amendment Act 105 of 1997 (the Act) in respect of
32 of the fraud counts, each involving an amount in excess
of
R500 000, which would attract a mandatory minimum sentence of 15
years’ imprisonment, inquired of the appellant’s
counsel
whether the appellant was alive to that fact. Both the appellant and
his counsel confirmed that this was indeed the position.
[4]
Once these preliminary issues were resolved, the appellant’s
written statement was read into the record. In that statement
the
appellant, with reference to annexure A to the charge sheet, which
was a schedule containing, inter alia, (a) the dates on
which the
various offences were committed; (b) the identities of the victims of
his criminal transgressions; (c) the amounts relating
to each count;
and (d) particulars of the immovable property sold and mortgaged,
admitted all the material elements of the various
offences as well as
the underlying facts but not that the amounts involved in respect of
the 32 counts of fraud were in excess
of R500 000. Although the
appellant had explicitly admitted the amounts relating to the count
of theft ─ all of which
were less than the threshold that would
trigger the application of the minimum sentence legislation ─
he studiously did not
do so in relation to all of the fraud counts.
On the contrary he maintained that the potential or actual prejudice
to his victims,
being, amongst others, The Standard Bank of South
Africa Ltd, ABSA Bank Ltd, First National Bank Ltd and Nedbank Ltd,
would be
mitigated by the proceeds of sale of the immovable
properties mortgaged in their favour when they are eventually sold
and thus
their ultimate loss would be substantially less than the
amount reflected in column 5 of annexure A to the charge sheet.
[5]
The prosecutor accepted the plea and the trial court, being satisfied
that the appellant had ‘correctly pleaded to the
elements of
fraud relating to count 1 to 64’ convicted the appellant ‘as
charged in respect of counts 1 to count 64’.
The appellant was
similarly convicted as charged in respect of the counts of theft and
money laundering. In this appeal we are
concerned only with the
sentence for the 64 counts of fraud. The crisp issue is whether the
32 counts where the State alleged that
the prejudice suffered
equalled or exceeded R500 000, brought the convictions on those
counts within the ambit of the Act.
This issue revolves around
the precise scope of the plea of guilty as substantiated by the s
112(2) statement, and whether the
evidence adduced after conviction
during the sentencing stage should have been taken into account in
relation to the conviction.
As to the latter point, it is clear that
no such evidence can be taken into account as forming the basis for
the conviction. Once
a plea explanation has been accepted, that alone
forms the factual matrix for the conviction. This means that any
evidence led
after conviction which may place the matter within the
ambit of the minimum sentencing provisions must be disregarded.
[6]
At the conclusion of the evidence led in aggravation and mitigation
of sentence the trial court proceeded to consider what the
appropriate sentence should be. After setting out the principles
relevant to sentence it went on to deal with the mandatory minimum
sentencing provisions prescribed in terms of s 51(2)
(a)
of the Act. It found that these were applicable but that substantial
and compelling circumstances justifying a lesser sentence
than the
mandatory one existed. In consequence it imposed a composite sentence
of 10 years’ imprisonment in respect of the
32 counts of fraud
to which s 51(2)
(a)
of the Act applied. In respect of the remaining counts of fraud the
trial court, again taking them together for purposes of sentence,
also imposed a sentence of 10 years’ imprisonment. A sentence
of six years’ imprisonment was imposed on count 65 (theft)
which was ordered to run concurrently with the combined sentence of
20 years’ imprisonment. Eight years’ imprisonment,
wholly
suspended conditionally, was imposed on count 66 (money laundering).
The end result was an effective sentence of 20 years’
imprisonment. It subsequently granted the appellant leave to appeal
against that sentence to the Free State Division.
[7]
The appeal to the court a quo was dismissed in a judgment of Rampai
AJP (in which Monaledi AJ concurred). Disenchanted with
the outcome
of his appeal, the appellant applied for leave to appeal to this
court. In granting leave, the court a quo, in a judgment
by C J Musi
J in which Rampai J concurred, said the following:
‘
[15]
It is clear that the applicant did not admit the amounts as per the
charge sheet. He admitted that the prejudice or potential
prejudice
suffered is a lesser amount than that stated in the charge sheet in
respect of counts 1 to 58.
[16] It is clear
that neither the regional magistrate nor the prosecutor properly
understood the import of the statement in amplification
of the plea .
. . In my view the [appellant] did not admit the amounts in column 5
of annexure “a” to the charge sheet.’
Since
the coming into effect of the
Superior Courts Act 10 of 2013
, the
position regarding the grant of leave to appeal to this court in
those circumstances has changed. The provisions of
s 16(1)(
b
)
of that Act applies in that, ‘. . . an appeal against any
decision of a Division on appeal to it, lies to the Supreme Court
of
Appeal upon special leave having been granted by the Supreme Court of
Appeal’. Since this is an appeal as defined in that
Act, the
court a quo lacked jurisdiction to entertain such an application.
[1]
At the outset of the hearing, this provision was quite properly drawn
to our attention by Mr Nel, who appeared for the appellant,
and an
application was sought for special leave to appeal to be granted. In
the light of the test for special leave, it is appropriate
to grant
special leave and it was also appropriate to deal with the substance
of the appeal.
[8]
It is unnecessary to recapitulate the evidence adduced during the
sentencing stage in detail. It will suffice to set out the
background
in broad outline. The appellant, who was 36 years of age at the time
of his trial, was practising as an attorney and
conveyancer in
Bloemfontein. Amongst his clients, he counted the so-called big four
local banks, namely, The Standard Bank of South
Africa Ltd, First
National Bank Ltd, ABSA Bank Ltd and Nedbank Ltd. The work that he
received from these banks encompassed the
registration of transfers
of immovable property, registration of mortgage bonds in favour of
the banks to secure moneys lent by
the banks to their clients,
cancellation of mortgage bonds and issuing money guarantees to third
parties on behalf of the
banks. Apart from his firm, Hattingh
Attorneys, of which he was the sole proprietor, he also held
interests in other local firms
of attorneys. As his practice
flourished he ventured into other enterprises such as property
development, construction, an estate
agency and a franchise in Quatro
Home Loans, who were bond originators.
[9]
His professional relationship with his clients was founded on the
absolute trust that the clients reposed in him. For this reason
the
banks, in particular, placed absolute reliance on him that the
mortgage bonds that he was, from time to time, instructed to
register
would afford the banks valid and enforceable rights at all times
given the risk that the banks undertook when lending
money to their
clients. The appellant’s decision to venture into construction
and property development was motivated by his
belief that those were
lucrative enterprises. But he soon ran into financial difficulties
when he could not recoup a sum of R800 000
that he had invested
in the construction of 12 houses as a sub-contractor to R J
Contractors. This was the origin of the trail
of his criminal
escapades that persisted over a period of four years until his
exposure.
[10]
To make up for the cash shortfall in his business ventures he devised
an elaborate scheme to perpetrate fraud against the banks
and the
entities that extended bridging finance to third parties through his
practice. He issued guarantees on behalf of the banks
and when he
received the money in the fullness of time he appropriated it for his
own use. On several occasions he registered double
mortgage bonds
over properties without the knowledge of the banks. He sometimes
misrepresented to the banks that mortgage bonds
that he had been
instructed to register had been registered when in truth that was not
the case. He lured unsuspecting third parties
to become participants
in what, on the face of it, were legitimate activities, in order to
effectively execute his nefarious schemes.
[11]
The State called four witnesses in aggravation of sentence. They were
the representatives of the four banks affected by the
appellant’s
crimes. The State’s evidence in essence was that the appellant
was one of the attorneys who were on the
panel of attorneys retained
by the affected banks to undertake conveyancing work on their behalf.
For a long time the banks believed
all was well until the appellant’s
machinations came to light. When this occurred, the true state of
affairs set out in the
preceding paragraph, was exposed. On occasions
the banks were induced to believe, through false representations made
by the appellant,
that certain persons or legal entities received
advances from them, thus concealing from the banks the extent of
their exposure.
And whilst the various properties remained unsold the
banks were obliged to secure them in order to mitigate their
potential losses.
Aggravating
factors
[12]
The crimes committed by the appellant are undoubtedly serious. And,
it is sad to say, they are also prevalent. He was an attorney
from
whom the highest standards of propriety, honour and impeccable
integrity were expected. He used his practice as an attorney
to
perpetrate fraud, theft and money laundering thus manifesting conduct
that is anathema to the practice of an attorney. He deliberately
subverted all the controls that the banks expected him to uphold. His
malpractices were premeditated, carefully planned and executed
and
persisted in over four years. He betrayed the trust that his clients
and those who dealt with him reposed in him. He engineered
a
deceitful scheme to conceal what he was about in his practice and
thereby debased his profession. He employed the trust account
of his
practice to give legitimacy to the disbursements effected through it,
indifferent to the enormous risks that exacerbated
the banks’
exposure.
Mitigating
factors
[13]
There are, however, a number of factors which count in the
appellant’s favour and I will mention some of them. He pleaded
guilty to all of the charges of which he was convicted thereby
manifesting contrition. He co-operated with the police investigation
and even assisted the State to formulate the charges against himself.
He was struck off the roll and suffered an ignominious fall
from
grace. He is a first offender. As an inevitable consequence of his
misconduct and given the scale of his fraudulent activities
his joint
estate was sequestrated. After his initial attempt to evade justice
he had cause to pause and surrendered himself to
the authorities. He
co-operated with the trustee of his insolvent estate in identifying
and tracing his assets for the benefit
of his creditors. He was
incarcerated for almost a year awaiting trial. Although the appellant
is the author of his own misfortune,
he must have suffered
embarrassment, disgrace and humiliation in the aftermath of his
arrest, prosecution and conviction. He will
live with a sense of
shame for the anguish that he has caused those who are close to and
looked up to him.
[14]
I now turn to a consideration of the merits of the appeal. In summary
the gravamen of the appellant’s submissions in
this court is
that: (a) s 51(2)
(a)
of the Act, read with Part II of Schedule 2, was not applicable and
should not have been invoked by the trial court; (b) there
were
material misdirections committed by the trial court and perpetuated
by the high court; (c) that aggravating circumstances
were
overemphasised whilst mitigating circumstances were underemphasised;
and (d) that the mitigating effect of the period spent
in gaol
awaiting trial was not accorded due weight.
[15]
The circumstances in which an appellate court will interfere with a
sentence imposed by a court of first instance are trite.
They were
reiterated by this court in
S
v Sadler
2000 (1) SACR 331 (SCA).
[2]
Sentencing is a matter pre-eminently within the discretion of the
trial court and a court of appeal will interfere with the exercise
of
such discretion only on limited grounds.
[16]
In
S
v Malgas
[3]
this court restated the test as follows:
‘
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so would be to usurp the sentencing discretion of the trial
court. Where material misdirection by the trial court vitiates
its
exercise of that discretion, an appellate Court is of course entitled
to consider the question of sentence afresh. In doing
so, it assesses
sentence as if it were a court of first instance and the sentence
imposed by the trial court has no relevance.
As it is said, an
appellate Court is at large. However, even in the absence of material
misdirection, an appellate Court may yet
be justified in interfering
with the sentence imposed by the trial court. It may do so when the
disparity between the sentence
of the trial court and the sentence
which the appellate court would have imposed had it been the trial
court is so marked that
it can properly be described as
“shocking”, “startling” or “disturbingly
inappropriate”.
It must be emphasised that in the latter
situation the appellate court is not at large in the sense in which
it is at large in
the former. In the latter situation it may not
substitute the sentence which it thinks appropriate merely because it
does not accord
with the sentence imposed by the trial court or
because it prefers it to that sentence. It may do so only where
the difference
is so substantial that it attracts epithets of the
kind I have mentioned.’
[17]
It is evident from the judgments of this court and other courts that
offences involving dishonesty, such as those of which
the appellant
was convicted, have always been viewed in a serious light. Their
gravity is, for example, underscored by what this
court said in
S
v Blank
1995 (1) SACR 62
(A) at 73b-d:
‘
In
view of all these facts, I feel fully justified in imposing a
sentence which will deter not only the accused and other
stockbrokers
from committing crimes similar to those of which the accused has been
convicted, but also others involved in business
who may be tempted to
indulge in larger-scale crimes of dishonesty. The time has
already arrived when the severity of punishments
imposed for this
sort of crime while of course taking the personal circumstances of a
particular accused into account, should
proclaim that society
has had enough and that the courts, who are the mouthpiece of
society, will not tolerate such crimes and
will severely punish
offenders: cf
S v Zinn
1969 (2) SA 837
(A) at 542D-E.’
[18]
In
Sadler
this court recognised the seriousness of crimes such
as fraud and their corrosive impact upon society. Concerning the
appellant,
the situation is exacerbated by the fact that he was also
an attorney and thus occupied a position of trust vis-à-vis
his
clients. Our courts have for a long time taken a dim view of
attorneys who betray the trust of their clients. Attorneys are, for
reasons too obvious to require elaboration, expected to scrupulously
observe the highest standard of professional integrity. A
deviation
from those standards not only impairs the integrity of those who
stray from the path of rectitude but also debase their
entire
profession. As long ago as 1954 in
R v Roux
1954 (4) SA 110
(T) Ramsbottom J said the following (at 111F-H):
‘
I
have been asked by your counsel to say that because of your high
position in the profession and because of your position in society
your fall is all the greater and the suffering which comes to
you by reason of that fall is all the greater. But I have some
difficulty in giving effect to that argument. There is another side
to that. The profession of the law is a most honourable profession.
A
very high standard of honour is required from its members. An
attorney owes the greatest good faith to his partners and to his
clients, and the higher he rises in his profession the greater is the
responsibility which rests upon him. It must not and cannot
be
thought that greater leniency can be shown towards those members
of the profession who have reached positions of eminence
than to
other practitioners who have not risen so high in the profession. All
must be treated alike. Theft is always a serious
crime. When it is
committed by an attorney, who is in a position of trust, that is an
aggravating circumstance.’
See
also
S v Brown
2015
(1) SACR 211
(SCA) para 123. Accordingly, it is in the light of the
foregoing backdrop that this appeal must be considered.
Application
of s 51(2)
(a)
[19]
As I have stated before, the guilty plea tendered by the appellant
was accepted by both the trial court and the prosecution.
And having
regard to the tenor of the appellant’s s 112(2) statement and
as observed by the court a quo in granting leave
to this court it is
evident that all those involved in the trial failed to appreciate the
import of the admissions made by the
appellant. They laboured under a
misconception that the appellant had admitted not only the elements
of the offences with which
he was charged but most importantly also
all of the amounts involved including those that would have triggered
the applicability
of s 51(2)
(a)
had they been admitted.
[20]
In
S
v Legoa
2003 (1) SACR 13 (SCA)
[4]
this
court dealt with the import of s 51(2)
(a)
and noted that for the minimum sentencing jurisdiction to exist in
respect of an offence, the accused’s conviction must encompass
all the elements of the offence set out in the Schedule. It went
further and said the following (para 15):
‘
It
is an established principle of our law that a criminal trial has two
stages - verdict and sentence. The first stage concerns
the guilt or
innocence of the accused on the offence charged. The second concerns
the question of sentence. Findings of fact may
be relevant to both
stages. However, those in the first stage relate to the elements of
the offence (or the specific form of the
offence) with which the
accused is charged. Those in the second mitigate or aggravate the
sentence appropriate to the form of the
offence of which the accused
has been convicted.’
[21]
It therefore goes without saying that for s 51(2)
(a)
to find application in this case it was incumbent upon the
prosecution to prove all the elements of the offence of the affected
fraud counts ‘in the form specified in the Schedule’.
This entailed that the evidence regarding all the elements of
the
form of the scheduled offence ought to have been led before verdict
and for the trial court to find, as a matter of fact, that
those
elements specified in the Schedule were present.
[5]
This, the prosecution failed to do. Accordingly, where an accused is
convicted solely on the basis of a s 112(2) statement, the
offence
contemplated in s 51(2)
(a)
of the Act must be determined only with reference to the contents of
that statement.
[6]
[22]
Thus, having regard to the absence of a crucial element of the form
of the scheduled offence charged before verdict, the trial
court did
not acquire the requisite jurisdiction to invoke s 51(2)
(a)
of the Act. Put differently, the trial court had ‘a clean slate
on which to inscribe whatever sentence it thought fit’
[7]
untrammelled by s 51(2)
(a)
.
Accordingly, it was impermissible for the trial court to rely on the
evidence adduced during the sentencing stage to the extent
that it
sought to cure the shortcomings in the State’s case before
conviction. This amounted to a clear and material misdirection
as was
mentioned in
Malgas
.
This much was conceded by Mr Mlotshwa, who appeared for the
State. Consequently the sentence imposed in respect of the 32
counts
of fraud thought by the trial court to fall within the purview of s
51(2)
(a)
falls to be reconsidered and a fresh sentence imposed in respect of
counts 1 to 64. In my view, these should be treated, as the
trial
court did, as one for purposes of sentence. Mr Mlotshwa agreed that
this should be the case.
Misdirections
[23]
The main thrust of the appellant’s argument on this score is
that both the trial court and the court a quo made certain
factual
findings that cannot be sustained on the evidence adduced during the
sentencing stage. Counsel’s heads of argument
contain
references to instances where the trial court and the court a quo
misdirected themselves. I have already said that evidence
which seeks
to bring the offences within the purview of the minimum sentencing
provisions cannot operate to do so. On the view
I take of the matter
I do not propose to traverse the balance of these submissions in this
judgment. Suffice it to say that they
do not seem to me in themselves
to be of such magnitude as to demonstrate that those courts did not
exercise their sentencing discretion
properly and judicially.
Appropriate
sentence
[24]
As I have already found, both the trial court and the court a quo
erroneously thought that s 51(2)
(a)
was applicable. But for that erroneous view there can be no doubt
that the trial court would have imposed a composite sentence
in
respect of counts 1 to 64. A reading of the trial court’s
judgment on sentence otherwise reveals that it painstakingly
weighed
all the relevant factors in determining appropriate sentences. It
took into account the cumulative effect of all the sentences
and
decided to ameliorate the appellant’s situation by ordering the
sentence imposed in respect of the count of theft to
run concurrently
with the sentences imposed for fraud and suspending the whole of the
sentence imposed on the count of money laundering.
It erred only to
the extent that it treated some of the fraud charges differently from
the rest as a consequence of the misconception
under which it was
labouring.
[25]
I am therefore driven to the conclusion that the gravity of the
offences of which the appellant was convicted undoubtedly calls
for a
severe sentence. However, the severity of that sentence will be
tempered by mercy. In
S
v Muller
[8]
this court said:
‘
When
dealing with multiple offences, a sentencing court must have regard
to the totality of the offender's criminal conduct and
moral
blameworthiness in determining what effective sentence should
be imposed, in order to ensure that the aggregate
penalty
is not too severe. In doing so, while punishment and deterrence
indeed come to the fore when imposing sentences for armed
robbery, it
must be remembered, as Holmes JA pointed out in his inimitable style,
that mercy, and not a sledgehammer, is the concomitant
of
justice. And while a judicial officer must not hesitate to be
firm when necessary, 'he should approach his task with
a humane
and compassionate understanding of human frailties and the pressures
of society which contribute to criminality'. In addition,
although it
is in the interest of the general public that a sentence for armed
robbery should act as a deterrent to others, an
offender should not
be sacrificed on the altar of deterrence.’
[9]
In
the light of both aggravating and mitigating circumstances, the
cumulative effect of the sentence and taking into account the
period
that the appellant spent in prison awaiting trial as one of the
relevant factors,
[10]
I am of
the view that a period of twelve years’ imprisonment is
appropriate on counts 1 - 64. The learned magistrate had
good reason
to make the period of six years’ imprisonment imposed in
respect of count 65 run concurrently with the sentence
imposed for
counts 1 – 64 and this shall remain the case.
[26]
In the result the following order is made:
1 The appellant is
granted special leave to appeal in terms of
s 16(1)(b)
of the
Superior Courts Act 10 of 2013
against the sentence imposed by the
regional court, Bloemfontein in respect of the 64 counts of fraud,
confirmed on appeal by the
court a quo.
2 The appeal is
upheld. The order of the court a quo is set aside and substituted
with the following order:
‘
The
appeal is upheld. The sentences imposed by the trial court in respect
of the counts of fraud are set aside and substituted as
follows:
(i) On counts 1 to
64 the accused is sentenced to 12 years’ imprisonment.
(ii) The sentence of
six years’ imprisonment imposed in respect of count 65 is
ordered to run concurrently with the sentence
imposed in respect of
counts 1 to 64.
(iii)
The sentence is ante-dated to 23 May 2011.’
_________________
X M PETSE
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant: J Nel
Instructed
by:
Kramer
Weihmann & Joubert, Bloemfontein
For
Respondent: J J Mlotshwa
Instructed
by:
The
Director of Public Prosecutions, Bloemfontein
[1]
Van
Wyk v The State; Galela v The State
[2014] ZASCA 152
(22 September 2014) para 24(b).
[2014] 4 All SA 708
(SCA) para 24(b).
[2]
S
v Sadler
2000
(1) SACR 331
(SCA) at 334d-335g.
[3]
S
v Malgas
2001 (1) SACR 469
(SCA);
(2001 (2) SA 1222
(SCA);
[2001] 3 AllSA 220
(SCA) para 12.
[4]
Pararaph
15.
[5]
Fn
2 paras 17-18.
[6]
S
v Gagu & another
[2006] ZASCA 7
;
2006 (1) SACR 547
(SCA) para 7
.
[7]
S
v Malgas
2001 (1) SACR 469
(SCA);
(2001 (2) SA 1222
(SCA);
[2001] 3 All SA
220
(SCA)) para 8.
[8]
S
v Muller & another
2012 (2) SACR 545 (SCA).
[9]
Footnotes
omitted.
[10]
S
v Radebe & another
2013 (2) SACR 165
(SCA) para 14;
Director
of Public Prosecutions, North Gauteng: Pretoria v Gcwala &
others
2014
(2) SACR 337
(SCA) paras 15-18.