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[2015] ZASCA 90
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Nieuwenhuizen v S (20339/14) [2015] ZASCA 90 (29 May 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 20339/14
In
the matter between:
LESLEY
NIEUWENHUIZEN
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Nieuwenhuizen v S
(20339/14)
[2015] ZASCA 90
(29 May 2015)
Coram:
Shongwe,
Leach JJA and Mayat AJA
Heard:
14 May 2015
Delivered:
29
May 2015
Summary:
Criminal Procedure – Sentence – convicted of six
counts of fraud to the tune of R130 429.46 – whether sentence
is shockingly inappropriate – court of appeal considers whether
the trial court and court a quo materially misdirected themselves
–
each case considered on its own merits – no misdirection found
– sentence is not strikingly or disturbingly
disproportionate
–
this
court not justified to interfere.
ORDER
On
appeal from:
The Northern Cape Division of the High Court,
Kimberley (Jordaan and Hendricks JJ sitting as court of appeal):
The
appeal is dismissed.
JUDGMENT
Shongwe
JA (Mayat AJA concurring)
[1]
This is an appeal against sentence only. The appellant was convicted
of six counts of fraud and sentenced to six years‟
imprisonment, two years of which were suspended for five years on
certain conditions. Her application for leave to appeal against
the
conviction and sentence was refused. She petitioned the Judge
President of the Northern Cape High Court for leave against the
conviction and sentence. Leave was accordingly granted to the court a
quo. However, the appeal was dismissed; likewise her application
for
a further leave to appeal was unsuccessful. Leave to appeal against
sentence only was granted by this court.
[2]
She pleaded not guilty on 31 fraud charges but was convicted on
counts 12 to 17 which amounted to the value of R130 429. 46
and was
acquitted on the other charges. She steadfastly denied the charges
against her. The trial court as well as the court a
quo were
satisfied of her guilt. The court a quo was also satisfied that the
trial court did not materially misdirect itself on
the sentence
imposed. It concluded that had it been in the position of the trial
court it would have imposed a lighter sentence,
however it was not
convinced that the sentence it would have imposed would have differed
materially from the one imposed to the
extent of declaring the
sentence imposed shockingly inappropriate. Hence the appeal against
conviction and sentence were dismissed.
[3]
The facts are briefly that the appellant approached the complainant
Mr Dawid Hermanus Jansen van Vuuren, an attorney, to do
debt
collection work for her. She claimed to be collecting debts from a
number of government employees. As a result she would receive
cheques
from some government departments, in particular, the Department of
Finance and Economic Affairs. She claimed these cheques
would be
deposited in the complainant‟s trust account and that the
complainant would in turn give her cash. She did not show
the
complainant the cheques which she had received and the cheques were
never deposited in the complainant‟s trust
account as
promised. For some reason the complainant believed her and he gave
her various amounts of cash in anticipation
that she would deposit
the cheques in his trust account.
[4]
At some stage she represented to the complainant that she was
expecting a sum of up to R700 000.00 in debt collections. They
were
seen together at Absa Bank where they conducted various
business/financial transactions. She also transferred money from the
complainant‟s trust account into her personal account or an
account named “New Finance”, which was seemingly
her
trading name. She also transferred money from the complainant‟s
trust account on her own, having forged the complainant‟s
signature. During her trial she did not dispute the allegations of
transferring money from the complainant‟s trust account
into
her personal account but averred that it was with the complainant‟s
consent.
[5]
It is settled law that an appeal court will not interfere on appeal
with a sentence imposed, unless the trial court materially
misdirected itself or the sentence is shockingly inappropriate. A
trial court exercises its judicial discretion depending on the
facts
of each particular case. Each and every case must be judged on its
own merits. Should the appeal court find that the discretion
was not
judicially exercised it will be at large to interfere. (See
S
v
Mitchele
&
another
2010 (1) SACR 131
(SCA). In
S
v
De
Jager
&
another
1965
(2) SA 616
(A) at 628H-629 Holmes JA observed that:
'It
would
not
appear
to
be
sufficiently
recognised
that
a
Court
of
appeal
does
not
have
a
general
discretion
to
ameliorate
the
sentences
of
trial
Courts.
The
matter
is
governed
by
principle.
It is the trial Court which has the discretion, and a Court of appeal
cannot interfere
unless the
discretion was not judicially exercised, that is to say unless the
sentence is vitiated
by
irregularity or misdirection or is so severe that no reasonable court
could have imposed it.
In
this latter regard an accepted test is whether the sentence induces a
sense of shock, that is
to
say if there is a striking disparity between the sentence passed and
that which the Court of
appeal
would
have
imposed.
It
should
therefore
be
recognised
that
appellate
jurisdiction
to
interfere with punishment is not discretionary
but, on the contrary, is very limited.'
[6]
An appeal court may also consider the trial court‟s discretion
to have been unreasonably exercised if the disparity between
the
trial court‟s sentence and that which the
appellate court would have imposed
is
'strikingly' or 'startlingly' or 'disturbingly'
inappropriate. However, if it is not so inappropriate the
appellate
court will not be justified to interfere with the sentence. (
S
v Malgas
2001 (1) SACR 469
para 12. Marais JA held:
'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'.
[7]
The appellant argued that the sentence of six years‟
imprisonment, two years of which is suspended on certain conditions
is shockingly inappropriate and is very harsh. She contended that a
custodial sentence was not the only option. She contended further
that the trial court as well as the court a quo misdirected
themselves by over-emphasising the seriousness of the offences. She
argued that a wholly suspended sentence alternatively a non-custodial
sentence would be appropriate in the circumstances. For example
a
sentence which would include an element of correctional supervision.
[8]
It was stated that the appellant was a caregiver of a three year old
child – therefore if she went to prison, the child‟s
interests would be jeopardised. From the evidence before us it is
clear that the appellant is not the primary care giver of this
child.
The mother of the child is alive and well and employed. In my view
the appellant was helping out in looking after the child.
The child
is now about seven years old – circumstances may have changed
since then. A custodial sentence would not prejudice
the interest of
the child and is the only appropriate sentence in the circumstances.
The present case is distinguishable from
S v M
(Centre for
Child Law as
Amicus Curiae
)
[2007] ZACC 18
;
2007 (2) SACR 539
(CC) where the
accused person was the biological mother of the minor children.
[9]
On the other hand the State contended that the offences are of a
serious nature and need to be treated with the seriousness
they
deserve. It argued further that an aggravating factor was the fact
that the offences were committed over a period of about
three months.
That even after the complainant had warned her that he would not pay
her any further cash until the other cheques
were paid into his trust
account – she continued performing more unlawful transfers. It
was argued on behalf of the State
that the offences were well planned
and meticulously executed. Counsel for the State argued further that
the appellant expressed
no contrition for her criminal wrong-doing –
therefore she could not be heard to plead rehabilitation as „any
hope
of rehabilitation becomes illusory and thus an unrealistic
expectation…‟ (See
S
v
Dyantyi
2011 (1) SACR 540
(ECG) at 552C-D)
[10]
In considering an appropriate sentence, the trial court did consider
her personal circumstances – she was 42 years old
at the time
of the commission of the offence and 49 years old at the time of her
sentencing – she was divorced – although
still living
with her ex-husband. She was unemployed but her two self- supporting
children were financially assisting her on a
monthly basis. She was
fostering a three year old child even though she was not the primary
care-giver. She is a first offender.
First offenders are not by law
entitled to non-custodial sentences. The purpose and objectives of
punishment have been repeatedly
mentioned by our courts as
deterrence, rehabilitation and retribution. These objectives must be
balanced and individualized.
[11]
The appellant has a constitutional right to remain silent (s
35)(1)
(a)
) and cannot be compelled to give evidence. However,
it is crucial when considering an appropriate sentence for the court
to know
exactly what she wanted to do with the money and what she
actually did with it. Very little, if anything, is known of the
motive
because she maintains her innocence. It is significant to note
that she meticulously planned this scheme to syphon money from the
trust account of the complainant, with confidence tricks. She did not
stop even after she had been warned. No element of remorse
is
displayed at all.
[12]
It is argued that some of the money has been returned. However, that,
in my view, is no excuse. Yes, it may mitigate the damage
but the
damage had already been done. Some of the money was paid back by Absa
Bank and not by the appellant. Marias JA in
S v Sadler
2000
(1) SACR 331
(SCA) at 335G-336B decried the so called „white
collar‟ crime and called for stiffer sentences to discourage
would
be perpetrators. Fraud, even if it is not a violent crime,
remains a serious offence which does not only affect the particular
complainant but also affects the growth of the country‟s
economy. Insurance premiums are soaring, security measures must be
put in place to prevent fraudsters from benefiting without producing.
What is clear to me is that the appellant embarked on this
criminal
path solely for personal financial gain which, to me translates to
avarice and nothing less.
[13]
It is a healthy practice from a jurisprudential point of view to look
at other cases similar to this one, however, it is simply
for
guidance and not as authority to impose the same sentences imposed in
those cases. Each case must be considered on its own
merits.
[14]
The sentence imposed is, in my view appropriate. I am unable to find
any material misdirection on the part of the trial court
as well as
the court a quo to justify interference. The disparity between the
sentence which I would have imposed, and the one
imposed is not
striking nor is it startling. Therefore the appeal against sentence
falls to be dismissed.
[15]
The appeal is dismissed.
J
B Z Shongwe
Judge
of Appeal
LEACH
JA:
[16]
The appellant was convicted on six counts of fraud that resulted in
the misappropriation by her of a total sum of R130 429.46
from the
trust account of an attorney, Mr Janse van Vuuren (the complainant),
and was sentenced to six years‟ imprisonment
of which a period
of two years was conditionally suspended. I have read the judgment of
my learned colleague Shongwe JA, but find
myself unable to agree with
his conclusion that the appeal against this sentence should be
dismissed. In my view the sentence imposed
on the appellant was far
too severe, justifying interference by this court on appeal.
[17]
The appellant, who traded as a debt collector under the name of New
Finance, had approached the complainant for his assistance,
informing
him that she had a number of debtors ─ from whom she collected
money on a monthly basis ─ who were employed
by a number of
government departments. These departments, so she alleged, withheld
certain amounts from the salaries of these debtors
that were then
paid to her to redistribute to creditors. However, so she stated,
government policy had changed and the departments
were no longer
willing to pay directly to a private person as they had done in the
past, but that they would pay an attorney. Her
proposal was that
these payments would be paid to the complainant who, in turn, would
then effect payment of the amounts to her
to distribute amongst the
various creditors. As an inducement, she told the complainant that
there was a sum of approximately R700
000 that would be collected in
this way.
[18]
The complainant agreed to the proposal and, shortly thereafter, the
appellant produced a state cheque made out in favour of
„Attorney
─ New Finance‟ in the amount of some R14 000. On seeing
this, the complainant told the appellant that
the cheque could not be
paid into his account because it was not made out to him and asked
her to take the necessary steps to ensure
either that a cheque that
had been correctly made out was procured or that the amount was paid
electronically into his trust account
at Absa Bank. A few weeks
later, the appellant presented him with two further cheques, one in
the sum of approximately R54 000
and the other for some R39 500. As
was the case with the first cheque, both were drawn in favour of
„Attorney ─ New
Finance‟. Again he informed the
appellant to take the necessary steps to have them re- issued or to
arrange for the amounts
to be electronically deposited into his trust
account.
[19]
All three of these cheques were false. Precisely how they came into
the possession of the appellant and drawn as they were,
was never
explained. However, despite the fact that they were not paid into his
account and that he never received the funds reflected
thereon, the
complainant succumbed to the appellant‟s entreaty to make funds
over to her. He trusted her and, on the strength
of the three cheques
she had shown to him, he paid her amounts totalling
approximately R107 500 out of his trust account
as an advance, so to
speak, in respect of the moneys that he was sure she would pay him in
due course.
[20]
This involved him, on one occasion, accompanying the appellant to the
Absa Bank branch where both he and the appellant held
their accounts
and where he effected a transfer of funds from his trust account into
her account simply by way of completing a
transfer slip. On a
subsequent occasion when an amount was incorrectly transferred to
another account, he telephoned the bank and
made arrangements for the
appellant to visit the branch in order to effect a transfer into her
account.
[21]
These payments were made by the complainant during or about June
2004. Early in July 2004, the complainant told the appellant
that he
would not be able to make further payments to her until she had
placed him in funds. However, on 12 July 2004, he was contacted
by a
bank official who informed him that the appellant had attempted to
effect a further transfer of which he was not aware. He
instructed
the bank not to do so and, on proceeding to the bank and making
further enquiries, ascertained that on a number of other
occasions
commencing on 3 July 2004, the appellant had been able to transfer
funds in amounts ranging from R5000 to R8000 out of
his trust account
into her own account. This had occurred as she had misrepresented to
the bank that she had been authorised by
him to do so, the bank
official concerned having been under the impression that she was in
his employ.
[22]
The transfer of funds from the complainant‟s trust account,
both with and without the complainant‟s knowledge,
led to the
appellant‟s conviction on six counts of fraud. It is accepted
that the total sum of the amounts paid out of the
complainant‟s
trust account into the account of the appellant was R130 429.46. The
bank repaid R23 000 to the appellant in
respect of the transfers made
without his authority and the complainant collected payments made by
debtors to his office for the
account of the appellant that totalled
some R65 000. In addition another firm of attorneys collected R21 000
in respect of similar
payments and was holding that sum in trust on
the complainant‟s behalf. However, there is no merit in the
argument
advanced on behalf of the appellant that these amounts
should be deducted from the actual loss for purposes of the
consideration
of sentence. The appellant herself has never repaid any
of the amounts she embezzled. The bank repaid what it had to, but it
suffered
a loss in that amount. The other amounts collected were not
due to the complainant but were for distribution amongst creditors.
The fact that the actual loss was split between the complainant and
any other persons affected by her fraudulent deeds is irrelevant.
[23]
The appellant was 42 years of age at the time she committed the
offences and, by the time sentence was imposed upon her in
the trial
court, had reached the age of 49 years. She was at that stage
divorced, although she was living in a permanent relationship
with
her former husband. Her two adult children were self-supporting
although the appellant and her partner were caring for a young
child
on a daily basis. The appellant is a first offender, and the fact
that she had reached middle age without having previously
offended
is, in my view, a material factor to take into account in the
assessment of sentence. And although her offences were obviously
planned, they were committed over a relatively short period and were
obviously made easy by the gullibility of the complainant
whose
laxity in regard to his professional obligations relating to his
trust account helped to facilitate the commission of the
frauds.
[24]
In considering what is an
appropriate sentence in the light of the facts and
circumstances outlined
above, it is of course true that „white-collar‟ crime
such
as
fraud,
motivated
by
personal
greed,
has
a
'
corrosive
impact‟
upon society
[1]
and is by its
very nature a serious
matter.
This
court has recognised that fraud is,
unfortunately,
endemic
in
our
society
at
present
and
that
there
is
a
need
to
impose appropriate
sentences with a deterrent effect in such cases.
[2]
That being
said, however, it is also
well established that although retribution and deterrence
are proper purposes of
punishment, they must not be afforded undue weight and
that an offender being
sentenced should not be sacrificed on the altar of
deterrence.
[3]
Thus
an
„insensitively
censorious
attitude
is
to
be
avoided‟.
[4]
As
Corbett
JA stated in
Rabie
:
'A
judicial
officer
should
not
.
.
.
strive
after
severity;
nor
on
the
other
hand,
surrender
to
misplaced
pity.
While
not
flinching
from
firmness,
where
firmness
is
called
for,
he
should
approach
his task with a humane and compassionate understanding of human
frailties and the
pressures
of society which contribute to criminality.'
[5]
[25]
The court a quo, in considering the appellant‟s appeal,
remarked that the sentence of six years‟ imprisonment,
two
years conditionally suspended, was a stiff sentence and on the heavy
side and that, had it sat as a court of first instance,
it would have
imposed a somewhat lighter sentence. However it concluded that it
could not find that the sentence was so heavy that
it could
interfere. It is on this issue that, in my respectful view, the court
a quo erred.
[26]
Although comparisons are often odious, and each case must be decided
on its own particular facts and circumstances, consideration
of other
reported decisions is illuminating. Those of particular significance
include the following:
S v
Blank
1995 (1) SACR 62
(A); (22/93)
[1994] ZASCA 115
(15 September
1994):
In this case a stockbroker embarked on a fraudulent share purchase
scheme. His conviction involved 48 fraudulent transactions
committed
over 17 months leading to profits of R9,75 million of which he
received approximately R1,5 million. An appeal against
a sentence of
8 years‟ imprisonment was dismissed by this court.
S
v Flanagan
1995 (1) SACR 13
(A); (583/92) [1994] ZASCA 125 (22
September
1994): In this case the appellant, a 31 year old bank clerk, was
sentenced to seven years‟ imprisonment, of which
two were
suspended, for having fraudulently transferred R8,5 million from one
account to another while acting under the influence
of her husband,
although no actual loss was suffered. This court set aside her
sentence and imposed a sentence of four years‟
imprisonment
subject to the provisions of s 276(1)(
i
) of the
Criminal
Procedure Act 51 of 1977
.
S
v
Nagrani
1997 (2) SACR 98
(W): The appellant, a married first offender
with two children, was convicted on 21 counts of fraud arising from
her having lodged
false VAT claims involving millions of rand. She
was sentenced to eight years‟ imprisonment, two years thereof
being conditionally
suspended. The sentence was confirmed on appeal.
S
v Kwatsha
2004 (2) SACR 564
(E): The appellant, a 29 year old
unmarried father of a single child employed by the Provincial
Government, was charged and convicted
of the theft of five government
cheques and a conspiracy to commit fraud by using the cheques to draw
a sum of R2 million. A sentence
of seven years‟ imprisonment,
two of which were suspended on certain conditions, was confirmed on
appeal.
S
v
Michele
&
another
2010 (1) SACR 131
(SCA);
(477/08
[2009] ZASCA 116
(25 September 2009: The appellant defrauded
a life insurance company by submitting a false claim stating that the
person whose
life was insured had died in a motor vehicle accident.
The insurer immediately paid out funeral cover of R20 000 but
subsequently
discovered that the claim was false and refused to pay
out the insured balance of R357 520 although the potential prejudice
had
been substantial. A sentence of seven years‟ imprisonment,
two years conditionally suspended, was reduced
on
appeal, this court finding that a
sentence of no more than five years‟ imprisonment,
two years
suspended, should have been imposed and that there was sufficient
disparity between that sentence and the sentence imposed
to
interfere.
S
v Janssen
2010 (1) SACR 237
(ECG); (CA&R 195/2006) [2009]
ZAECGHC
58
(2 September 2009): The appellant had been convicted on 144 counts of
fraud involving an amount in excess of R1,5 million, an
offence which
attracted a prescribed minimum sentence of 15 years‟
imprisonment. An appeal against a sentence of eight years‟
imprisonment was dismissed.
S
v
Engelbrecht
2011 (2) SACR 540
(SCA); (446/10)
[2011] ZASCA 68
(17
May
2011): The appellant had falsified documents in respect of the sale
of motor vehicles so that the transactions would be zero
rated for
VAT as exports when in fact the vehicles were sold locally. The
appellant was convicted of 157 counts of fraud which
had resulted in
the South African Revenue Service being defrauded of approximately
R1,6 million. As in the case of the present
appellant, he was
sentenced to six years‟ imprisonment, two years of which were
conditionally suspended. This was confirmed
by this court.
[27]
As I have said, each case must be considered in the light of its own
particular facts and circumstances, and although the imposition
of
sentence is not an exact science, involving as it does the exercise
of a judicial discretion, previous decisions have a not
inconsiderable degree of relevance to show trends and judicial
attitudes. Bearing this in mind, the cases referred to above
illustrate
that a sentence imposed of six years‟ imprisonment,
two of which are conditionally suspended, falls within a range
generally
regarded as being appropriate for white-collar crimes far
more serious than those committed by the appellant in the present
case.
I do not wish to trivialise the appellant‟s crimes. By
their very nature they were severe and must be treated as such.
However,
the amount involved, while not insubstantial, does not
result in this case falling within the echelon of those cases in
which a
sentence as substantial as six years‟ imprisonment,
albeit partially suspended, is as a rule generally imposed.
[28]
Indeed, had there been any indication of remorse on the part of
the appellant, this is a case in which, in my view, a
period of
imprisonment subject to the provisions of
s 276(1)(
i
) of the
Criminal Procedure Act may
well have been appropriate. Unfortunately
there was no such indication on the part of the appellant. She
persisted in an abjectly
false defence, not only in the trial court
but on appeal to the court a quo. Whether or not this was as a
result of
misleading legal advice is neither here nor there: the fact
remains that she has not recognised the criminality of her actions
and shown no contrition. Accordingly, in the light of the other
circumstances that I have mentioned, a period of direct imprisonment
seems to be called for, but not a sentence as severe as that imposed
by the trial court.
[29]
There
is
one
further
feature
to
be
considered.
The
offences
were
committed
in
2004.
Criminal
proceedings
against
the
appellant
only
commenced
some
two
years
later,
the
appellant
having
made
her
first
appearance
in
court
on
31
March
2006.
The
matter
was
then
postponed
on
several occasions until,
on 1 August 2006, the charge was eventually put to her
and the trial commenced.
Despite the dispute being of a narrow ambit, the trial
proceeded at the pace of a
snail and dragged on interminably. During the course
of
more
than
four
years
it
was
postponed
on
numerous
occasions
until
eventually,
on
15
October
2010,
the
appellant
was
found
guilty.
Thereafter
it
took
until
11
February
2011,
a
date
almost
five
years
after
the
charges
were
initially
instituted
against
her
and
almost
seven
years
after
the
offences
were
committed, for
the
appellant
to
be
sentenced.
As
this
court has
previously
observed,
[6]
it
would be „callous to leave out of account the mental anguish
the [appellant] must
have
endured‟ during the extended period after criminal
proceedings were
instituted against her until sentence was imposed.
[30]
Bearing all the aforegoing in mind, I am of the view that a sentence
of no more than three years‟ imprisonment, one year
of which is
conditionally suspended on appropriate conditions, is the sentence
which should have been imposed upon the appellant.
There is
sufficient disparity between such a sentence and that imposed on the
appellant to render interference on appeal both justified
and
necessary.
[31]
I would therefore allow the appeal, set aside the order of the court
a quo and replace it with the following:
'1
The appeal against conviction is dismissed.
2
The appeal against sentence is upheld. The sentence imposed by the
magistrate is set aside and is substituted with the following:
“
Three
years‟ imprisonment, one year of which is suspended for five
years on condition that the accused is not convicted of
fraud or
theft committed during the period of suspension and in respect of
which she is sentenced to imprisonment without the option
of a fine.”
L
E Leach Judge of Appeal
Appearances
For
the Appellant: R van
der Merwe
Instructed by:
Haarhoffs Inc., Kimberley;
Phatshoane Henney Inc.,
Bloemfontein.
For
the Respondent: A H van Heerden
Instructed by:
The Director of Public
Prosecutions, Kimberley;
The Director of Public
Prosecutions, Bloemfontein.
[1]
Compare
S v
Sadler
2000
(1) SACR 331
(SCA); (57/99)
[2000] ZASCA 13
(28 March 2000) para 13.
[2]
S v Engelbrecht
2011
(2) SACR 540
(SCA); (446/10)
[2011] ZASCA 68
(17 May 2011)
para 31.
[3]
S v
Muller & another
2012
(2) SACR 545
(SCA); (855/10)
[2011] ZASCA 151
(27 September 2011)
para 9.
[4]
Per Holmes JA in
S v
Rabie
1975 (4) SA 855
(A) at 862C-D.
[5]
Rabie
at 866A-C.
[6]
Compare
S v
Roberts
2000
(2) SACR at
522 (SCA) para 22 and
S
v Michele
at
135 para 13.