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[2015] ZASCA 94
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Modiga v The State (20738/14) [2015] ZASCA 94; [2015] 4 All SA 13 (SCA) (1 June 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20738/2014
Reportable
In
the matter between
SIMON
MODIGA
APPELLANT
and
THE STATE
RESPONDENT
Neutral
citation:
Modiga v The State
(20738/14)
[2015] ZASCA 94
(01 June
2015)
Coram:
Bosielo and Saldulker JJA and Van der
Merwe AJA
Heard:
13 May 2015
Delivered:
01 June 2015
Summary
:
Criminal appeal against convictions and sentences – appellant
convicted on multiple counts – whether the
appellant was a
member of the gang of robbers – evidence by a single witness –
circumstantial evidence – adequacy
of the evidence.
ORDER
On
appeal from:
North Gauteng High Court,
Pretoria (Claasen, Pretorius and Makgoka JJ sitting as a court of
appeal):
The appeal succeeds
partially as follows:
1 The appeal against the
convictions in respect of counts 1, 2, 6 and 7 is dismissed. The
convictions and the sentences imposed
are confirmed.
2
The appeal against the convictions in respect of counts 3 and 4 is
upheld. The convictions and the sentences in respect of counts
3 and
4 are set aside.
JUDGMENT
Bosielo JA (Saldulker
JA and Van der Merwe AJA concurring):
[1]
At approximately 12h30 on 17 December 2007, a cash-in-transit heist
took place on the Visgat Road near Vereeniging. A vehicle
belonging
to Fidelity Cash Management Services (Fidelity Guards) was on its way
to its depot in Vanderbijlpark having collected
money from Rand Water
Board when a group of men waylaid and forced it out of the road. A
number of men descended onto it and snatched
the money containers.
Two stolen vehicles, a Mercedes-Benz and a Mazda Drifter were used in
the robbery. Reacting to a radio report,
Sergeant Robert Henry Deere
(Deere) who was doing patrol duties in the area drove to the scene.
Whilst en route to the crime scene
he observed a Mazda Drifter and a
Toyota Cressida driving away from the Fidelity Guards’ motor
vehicle which was parked alongside
the road. As these vehicles passed
him, some passengers at the back of the Mazda Drifter shot at him. He
made a U-turn and chased
them. A wild chase concomitant with some
shooting ensued. Later that day, four males including the appellant
were arrested by police
officers in an area called Drie Rieviere.
[2]
Subsequently, all the five men were charged in the Vereeniging
Regional Court, with multiple offences which included two counts
of
robbery with aggravating circumstances in that firearms were used;
two counts of theft of motor vehicles (the Mercedes-Benz
and the
Mazda Drifter); attempted murder of Deere; unlawful possession of a
machine-gun (AK47); unlawful possession of ammunition
for a
machine-gun; unlawful possession of firearms and unlawful possession
of ammunition. The appellant was convicted on two counts
of robbery,
two counts of a contravention of s 37(1) of the General Law Amendment
Act 62 of 1955 (involving the Mercedes Benz and
Mazda Drifter),
unlawful possession of a machine-gun (AK47) and unlawful possession
of ammunition for a machine-gun. He was sentenced
to a cumulative
sentence of imprisonment for 45 years.
[3]
Aggrieved by his convictions and sentence, the appellant appealed to
the North Gauteng High Court, Pretoria. His appeal succeeded
partially in that, although his convictions were confirmed, his
effective sentence was reduced to imprisonment for 22 years. The
court a quo having granted him partial leave to appeal against counts
of theft of motor vehicles, this appeal is with the leave
of this
Court.
[4]
I interpose to state that a series of formal admissions were made in
terms of s 220 of the Criminal Procedure Act 51 of 1977
(CPA) in
terms whereof all the averments regarding the robberies, theft of
motor vehicles, possession of firearms and ammunition
were admitted.
The only issue placed in dispute was the involvement of the appellant
in these offences. As a result, this appeal
falls to be decided on a
narrow compass namely the identity of the appellant as a member of
the gang of robbers which robbed the
Fidelity Guards that day.
[5]
Although the respondent called a number of witnesses, who included
police officers, a security officer and the owners of the
stolen
vehicles and, importantly, the owner of the house where the appellant
was eventually arrested by the police, only two witnesses
implicated
the appellant. These were Deere, the police officer who arrived first
at the crime scene and Mr Saul Nxuma (Nxuma),
the owner of the house
where the appellant was arrested.
[6]
I interpose to state that the trial court found the evidence of Deere
unreliable as he had contradicted himself on material
aspects of the
case and therefore his evidence was rejected. It suffices to state
that this finding is fully borne out by the record.
As a result, I
cannot quibble with it. Self-evidently there is no need to refer to
his evidence. This resulted in Nxuma being a
single witness regarding
the appellant’s involvement in the crimes. Undoubtedly, as the
evidence of Nxuma was pivotal to
the conviction of the appellant, it
called for a cautious approach and serious consideration.
[7]
The general tenor of Nxuma’s evidence is as follows: that he is
the owner of house number 22 Wallnut Street, Drie Riviere;
on 17
December 2007, he was at his home with his four year old boy; whilst
relaxing in his bedroom, he heard a commotion and screeching
of tyres
of a vehicle outside his home in the street; instinctively he peeped
through his window to see what was happening; he
saw a cream white
bakkie with a green stripe on the side at the intersection; there
were some males on the back of the bakkie
who had fire-arms;
the bakkie then made a U-turn and he lost sight of it. On the
evidence as a whole this was the Mazda Drifter.
[8]
Thereafter he heard footsteps inside his house; he moved
down to the ground floor from the upper floor to see what
was
happening; he was met by an unknown male who had a plastic bag
and a long fire-arm in his hand; this unknown man pointed
the firearm
at him and bellowed ‘hamba-hamba’ (walk, walk); shortly
thereafter a second unknown male emerged
into the passage and
bumped against the two of them; Nxuma lost his balance and fell; he
then stood up and fled to the outside
through his sitting room door
where he found a number of police officers.
[9]
He told the police officers that he had left his son inside the house
and that there were unknown people inside. He then re-entered
his
house with one policeman to fetch his four year old son; they found
the appellant on the kitchen floor holding the child; he
took the
child from the appellant and went outside with him; the police then
arrested and hand-cuffed the appellant; they then
took him to their
vehicle.
[10]
It is clear from the record the main purpose of Nxuma’s
cross-examination by the appellant’s counsel was to discredit
him by showing, contrary to his denial, that he and the appellant
were acquaintances before this incident, and further that Nxuma
was
part of the gang of robbers. However, Nxuma persistently denied all
suggestions by the appellant’s counsel during cross-examination
that he knew the appellant and that they were acquaintances; he also
denied that the appellant had visited him on the morning of
the
robbery to fetch R3 000 to pay for motor vehicle parts which he
had sold to him; he furthermore denied suggestions by
the appellant
that he was involved in the robbery.
[11]
The appellant testified in his own defence. Although he admitted that
he was arrested by the police inside Nxuma’s house,
he denied
that he was part of the gang of robbers; he explained that he came to
Nxuma’s home at his request. His version
was that he was a
friend of Nxuma as they were both taxi drivers and from time to time
they sold motor vehicle parts to each other.
They had known each
other for approximately 10 months before this date. On this day,
Nxuma came to his home in Pimville, Soweto
to fetch certain motor
vehicle parts. As Nxuma did not have money to pay him, he requested
him to accompany him to his home to
fetch the money as apparently one
of Nxuma’s drivers would bring him money during the day. He
explained further that he had
been to Nxuma’s home before and
even went to the house of Spokes, the younger brother to Nxuma.
[12]
In an attempt to show that he knew Nxuma and that they were
acquaintances, he recounted intimate knowledge to the effect that
he
knew his brother called Spokes, who was also a taxi driver as well as
his son Jomo, who drove a taxi for Spokes, and Nkosana.
He also
testified that he knew that Nxuma had had marital problems with his
wife whom he later shot and further that after this
tragic incident,
he tried to commit suicide.
[13]
As indicated above, when confronted with this information during
cross-examination, Nxuma steadfastly denied knowing the appellant.
On
being pressed by the appellant’s counsel, he stated
speculatively that possibly the appellant learnt all his personal
information from his younger brother Spokes with whom he did not have
a good relationship.
[14]
In contradistinction, the appellant testified that Nxuma was part of
the gang of robbers; that he saw him in the house talking
to two men,
one of whom had a bag and, further that when he went down from the
upper floor, he saw Nxuma in possession of that
bag and, that he
appeared nervous.
[15]
As already indicated the appellant admitted that he was arrested
inside Nxuma’s home by the police and that money was
found in
plastic bags bearing the name Fidelity Guards inside a larger plastic
bag and further that a long firearm was also found.
According to the
evidence this firearm was an AK 47.
[16]
It is clear from the record that the appellant had serious
difficulties to explain why, if he suspected that Nxuma was part
of
the gang of robbers he did not tell that to the police when they
arrested him instead of arresting Nxuma. His response is that
he did
not want to get Nxuma into trouble. It also came to light during
cross-examination that even after he had voluntarily elected
to make
a warning statement, he still failed to disclose this crucial
information, as well as the fact that he had seen Nxuma talking
to
the robbers and further that Nxuma had been holding the bag which
contained money belonging to Fidelity Guards. His response
was that
he was advised by his lawyer, Mr Pienaar not to disclose too many
details. Furthermore, the appellant could not give any
reasonable
explanation why when Nxuma denied that they were acquaintances at his
home during the arrest, he did not controvert
that.
[17]
In evaluating all the evidence, the trial court made positive
findings regarding Nxuma’s credibility and the reliability
of
his evidence. Conversely, it found that the appellant’s
evidence was riddled with material contradictions
and
improbabilities. In particular, the trial court found the following
to be inherently improbable; that faced with the grim reality
of an
arrest on such a serious charge, the appellant failed to tell the
police that Nxuma was the person involved with the robbers;
he failed
to disclose this to the police at the critical moment when he was
arrested for a crime which he did not commit;
that he did not
tell the police because he did not want to get Nxuma into trouble,
that even when the police told him that Nxuma
denied that he
knew him, he did not tell them how he knew him; that he only
disclosed this crucial information much later
during his bail
application; even in his warning statement which he admitted that he
made freely and voluntarily, he never informed
the police officer
that Nxuma was involved in the robbery and that he saw him in
possession of the bag wherein money belonging
to Fidelity Guards was
found; that he did this because his lawyer, Mr Pienaar had advised
him not to say a lot in his statement.
[18] Before us, the
appellant’s counsel unleashed a three-pronged attack against
the judgment of the trial court. Firstly,
he submitted that the trial
court erred in relying on the evidence of Nxuma, who was a single
witness, without applying the cautionary
rule. It was contended that
Nxuma did not pass the litmus test for a single witness as laid down
in
R
v Mokoena
1956 (3) SA 81
(A) as he
contradicted himself on material aspects of the case. However the
appellant’s counsel conceded, correctly in my
view, that the
Mokoena judgement has been qualified by
S
v Sauls and Others
1981 (3) SA 172
(A).
Secondly, it was contended that Nxuma’s demeanour left much to
be desired as his eyes were shifty whilst testifying;
that he was
long-winded and evasive with his responses.
[19]
Thirdly, relying on
S v Texiera
1980 (3) SA 755
(A) the appellant’s counsel criticised the
state for having failed to call essential witnesses namely Nxuma’s
wife,
his brother Spokes or his son, Jomo to corroborate Nxuma. He
urged us to draw an adverse inference against the respondent for such
inexplicable failure. In conclusion, the appellant’s counsel
submitted that, absent any rebutting evidence from the state,
the
appellant’s version should have been accepted as being
reasonably possibly true and that he should have been acquitted
[20]
Regarding counts 3 and 4, the appellant’s counsel submitted
that the trial court erred in finding the appellant guilty
for being
in unlawful possession of stolen property without reasonable cause in
terms of s 37 of the General Law Amendment Act
62 of 1955 as there
was no evidence that the appellant was found in possession of the two
vehicles involved in the robbery. It
was contended that the
admissions made in terms of s 220 of the CPA to the effect that the
two vehicles which were used in the
robbery where the appellant was
involved were stolen was not sufficient to justify the conclusion
that he possessed them. In short,
the appellant’s counsel
submitted that the legal elements of
detentio
and
animus possidendi
were not proved.
[21]
On the other hand, concerning the two counts of robbery, the main
submission by the respondent’s counsel was that, as
no
misdirection had been shown on the part of the trial court, this
Court was precluded by the authority of
R
v Dhlumayo & another
1948 (2) SA
677
(A) from interfering with its factual and credibility findings.
It was contended further that, although Nxuma was a single witness,
he gave his evidence in a clear, logical and satisfactory manner. It
was submitted further that the presence of the Mazda Drifter
in
Nxuma’s garage, the bag containing money identified as
belonging to Fidelity Guards as well as the AK47 created overwhelming
circumstantial evidence which justified, as being the only reasonable
inference against the appellant that he was part of the gang
of
robbers. The respondent’s counsel concluded that the
appellant’s version was so interspersed with serious
contradictions
and inherent improbabilities that it could not be
reasonably possibly true.
[22]
Regarding the contravention of s 37(1) of Act 62 of 1955, the
respondent’s counsel contended that the s 220 admissions
by the
appellant to the effect that the two motor vehicles in issue were
stolen and further that they were used in the robbery
where the
appellant was involved, constitute sufficient proof of possession by
the appellant. He contended further that it makes
little or no
difference that, having rejected the evidence of Deere, there is no
evidence that the appellant was the driver of
any of the two
vehicles. It is sufficient that he was part of the robbery where the
two vehicles were used to facilitate the robbery,
so the contention
went.
[23]
It is trite that as a court of appeal we have to show deference to
the factual and credibility findings made by the trial court.
This is
so as the trial court has had the advantage which an appeal court
never has of hearing and observing the witnesses as they
testify and
under cross-examination. As it was stated in
R
v Dhlumayo
(supra) at 705 ‘the
trial court is steeped in the atmosphere of the trial’. A court
of appeal may only interfere where
it is satisfied that the trial
court misdirected itself or where it is convinced that the trial
court was wrong.
R v Dhlumayo
(supra)
at 705-706;
S v Artman & another
1968 (3) SA 339
(A) at 341E-H;
S
v Hadebe & others
1998 (1) SACR
422
;
[1997] ZASCA 86
(SCA) at 426a f.
[24] Confronted with a
similar argument in
Hadebe
(supra) this Court enunciated the
correct approach to resolving such a problem as follows at 426e-I,
with reference to
Moshesi & others v R
(1980-1984) LAC 57
at 59F-H:
‘
The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the Appellants was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful aid
to a
proper understanding and evaluation of it. But, in doing so, one must
guard against a tendency to focus too intently upon
the separate and
individual parts of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood for the trees.’
It
should be clear from the above cases that the powers of this Court,
sitting as a court of appeal are clearly circumscribed. It
does not
have carte blanche to interfere with the factual and credibility
findings properly made by the trial court.
[25]
It is indeed correct, as the appellant’s counsel pointed out
that there are aspects of the state’s case which are
unsatisfactory. It is furthermore correct that there were instances
where Nxuma was argumentative, gave long explanations and sometimes
declined to answer questions during cross examination. I agree that
he can be criticised for this. However, the trial court was
alive to
these aspects and dealt with them in its judgment. Having had the
benefit of hearing and observing Nxuma testify which
we do not have
as a court of appeal, the trial court found that Nxuma’s
demeanour did not detract from his credibility or
the truthfulness
and cogency of his testimony. It found such instances to be
peripheral to the real issue.
[26] I pause to observe
that the record shows clearly that Nxuma was subjected to a lengthy,
robust and at times hostile cross-examination
from the appellant’s
counsel. It is clear from the record that the only time when Nxuma
became agitated was when the appellant’s
counsel repeated some
questions. Undoubtedly this irritated Nxum, as one can discern from
the following responses:
‘
Ek
is `n persoon en die gebeure het by my huis plaasgevind en die
polisie het daar gekom en hulle het toe hulle werk gedoen en ek
is
nie daarop geregtig om instruksies aan die polisie te gee wat om te
doen nie’.
This was at time when the
appellant’s counsel demanded an explanation from Nxuma as to
why the police officers did not take
certain steps. Much clearer
proof of Nxuma’s agitation being caused by the manner in which
the appellant’s counsel
cross-examined him is captured in the
following response:
‘
En
`n ander versoek wat ek wil rig is dat as u vrae aan my gestel het,
dan u moet my `n geleentheid gee om die vrae te beantword
en u moet
nie woorde in my mond sit nie’.
This
occurred at a time when Nxuma, correctly or wrongly thought that the
appellant’s counsel was badgering him.
[27]
Having read the record, these responses by Nxuma appeared to me to be
eminently reasonable. When read out of context these
responses may
appear impolite if not plainly arrogant, but they were direct
responses to questions posed. To my mind, they do not
cast any shadow
on Nxuma’s demeanor and candour. As those experienced in
trials know that ‘demeanour can be a
tricky horse to ride’.
It is clear to me that Nxuma was naively venting his frustrations at
what he thought were unfair questions
by the appellant’s
counsel.
[28] In order to avoid
falling into the trap of failing to see the wood for the trees as per
the warning expressed in
Hadebe
(supra), I propose to take a
step back and consider the entire evidence as a mosaic, consider the
strength and weaknesses in the
evidence and consider the merits,
demerits and the probabilities. See also
S v Trainor
2003 (1)
SACR 35
;
[2002] ZASCA 125
(SCA) para 9 and
S v Chabalala
2003
(1) SACR 134
(SCA) para 15.
[29]
I am alive to the fact that the state bore the onus to prove the
guilt of the appellant beyond a reasonable doubt and that
there is no
onus on the appellant to proof the truthfulness of any explanation
which he gives nor to convince the court that he
is innocent. Any
reasonable doubt regarding his guilt must redound to the appellant’s
benefit.
S v Jochems
1991 (1) SACR 208
;
[1990] ZASCA 146
(A);
S
v V
2000 (1) SACR 453
(SCA).
[30] However, as it was
stated in
S v Ntsele
1998 (2) SACR 178
;
[1998] ZASCA 49
(SCA)
at 182a-g
‘
Die
bewyslas wat in `n strafsaak om die Staat rus is om die skuld van die
aangeklaagde bo
redelike
twyfel te benys – nie bo elke sweempie van twyfel nie. Ons reg
vereis insgelyks nie dat die hof slegs op absolute sekerheid
sal
handel nie, maar wel op geregverdigde en redelike oortuigings –
niks meer en niks minder nie (
S v Reddy
and others
1996 (2) SACR 1
(A) op
9
d-e
).
Voorts, wanneer `n hof met onstandigheidsgetuienis werk, soos in die
onderhawige geval, moet die hof nie elke brokkie getuienis
afsonderlik betrag om te besluit hoeveel gewig daarvan geheg moet
word nie. Dit is die kumulatiewe indruk wat al die brokkies tersame
het wat oorweeg moet word om te besluit of die aangeklagde se skuld
bo redelike twyfel bewys is (
R v De
Villiers
1944 AD 493
at 508-9).’
See
also
S v Phallo & others
1999
(2) SACR 558
;
[1999] ZASCA 84
(SCA) paras 10-11.
[31]
The trial court was aware that Nxuma was a single witness and that
his evidence had to be treated with caution. However, it
found strong
corroboration of his evidence in the undisputed evidence that soon
after the robbery, the appellant was found inside
Nxuma’s home
where items which were indisputably involved in the robbery in the
form of the Mazda Drifter, the bag containing
money positively
identified as Fidelity Guard’s property and an AK47 with
ammunition, were found. Furthermore, the trial
court found that this
evidence together with the appellant’s patently mendacious
version justifies the inference as the only
reasonable inference from
the proven facts, that the appellant was part of the gang of robbers.
[32] I am mindful of the
salutary warning expressed in
S v Snyman
1968 (2) SA 582
(A)
at 585G that even when dealing with the evidence of a single witness,
courts should never allow the exercise of caution to
displace the
exercise of common sense. Equally important is what this Court stated
in
S v Sauls
(supra) at 180C-H that:
‘
In
R v T
1958
(2) SA 676
(A) at 678 OGILVIE THOMPSON AJA said that the cautionary
remarks made in the 1932 case were equally applicable to s 256 of the
1955 Criminal Procedure Code, but that these remarks must not be
elevated to an absolute rule of law. Section 256 has now been
replaced by
s 208
of the
Criminal Procedure Act 51 of 1977
. This
section no longer refers to “the single evidence of any
competent and credible witness”; it provides merely that
“
an
accused may be convicted on the single evidence of any competent
witness”.
The absence of the word
“credible” is of no significance; the single witness must
still be credible, but there are,
as
Wigmore
points put,
“indefinite degrees in this character we call credibility”.
(
Wigmore on Evidence
vol III para 2034 at 262.) There is no
rule of thumb test or formula to apply when it comes to a
consideration of the credibility
of the single witness (see the
remarks of Rumpff JA in
S v Webber
1971 (3) SA 754
(A) at
758). The trial Judge will weigh his evidence, will consider its
merits and demerits and, having done so, will decide whether
it is
trustworthy and whether, despite the fact that there are shortcomings
or defects or contradictions in the testimony, he is
satisfied that
the truth has been told. The cautionary rule referred to by De
Villiers JP in 1932 may be a guide to a right decision
but it does
not mean
“
that
the appeal must succeed if any criticism, however slender, of the
witnesses’ evidence were well founded” (per Schreiner
JA
in
R v Nhlapo
(AD 10 November 1952) quoted in
R v
Bellingham
1955 (2) SA 566
(A) at 569).
It has been said more than once that the exercise of caution must not
be allowed to displace the exercise of common
sense. The question
then is not whether there were flaws in Lennox’s evidence –
it would be remarkable if there were
not in a witness of this kind.
The question is what weight, if any, must be given to the many
criticisms that were voiced by counsel
in argument.’
[33] This is how the
trial court approached and assessed Nxuma’s evidence. Based on
this, I am unable to say that the trial
court erred in its accepting
Nxuma’s evidence as truthful and reliable as it was
corroborated by the damning circumstantial
evidence. As this Court
held in
S v Reddy
(supra) at 8h with reference to
Best on
Evidence
10
th
ed § 297 at 261:
‘
The
elements, or links, which compose a chain of presumptive proof, are
certain moral and physical coincidences, which individually
indicate
the principal fact; and the probative force of the whole depends on
the
number, weight, independence, and
consistency
of those elementary
circumstances.
A number of
circumstances, each individually very slight, may so tally with and
confirm each other as to leave no room for doubt
of the fact which
they tend to establish…. Not to speak of greater numbers, even
two articles of circumstantial evidence,
though each taken by itself
weigh but as a feather, join them together, you will find them
pressing on a delinquent with the weight
of a mill-stone….’
I
am satisfied that the evidence of Nxuma together with the
circumstantial evidence regarding the appellant’s arrest at
Nxuma’s
home constituted proof of his complicity in the robbery
beyond reasonable doubt. Accordingly, I can find no fault with his
conviction
on the two counts of robbery. It follows that this Court
sitting as a court of appeal cannot interfere with the findings by
the
trial judge.
[34]
However, the appeal in respect of the appellant’s conviction
for contravention of
s 37(1)
of Act 62 of 1955 regarding counts 3 and
4 which are competent verdicts on the charges of theft of the motor
vehicles is on a different
footing. There is no evidence that the
appellant was ever in possession of any of the two stolen motor
vehicles which were used
in the robbery at any given moment.
Furthermore, no witness testified that the appellant either drove or
was inside any of the
two vehicles. It follows that the essential
elements of these two offences have not been proved. Absent such
proof, it cannot be
said that the State had proved his guilt. See
S
v Mbuli
2003 (1) SACR 97
;
[2002] ZASCA
78
(SCA);
S v Manamela & Another
(Director-General of Justice Intervening)
[2000] ZACC 5
;
2000 (1) SACR 414
(CC) 438 para 59 (2). It follows that these
convictions cannot stand.
[35] In the result, the
following order is made:
The appeal succeeds
partially as follows:
1 The appeal against the
convictions in respect of counts 1, 2, 6 and 7 is
dismissed. The convictions and
the sentences imposed are confirmed.
2
The appeal against the convictions in respect of counts 3 and 4 is
upheld. The convictions and the sentences in respect of counts
3 and
4 are set aside.
_________________
L.O.
Bosielo
Judge
of Appeal
Appearances:
For
Appellant :
A B Booysen
Instructed
by:
Legal Aid SA, Pretoria
Legal
Aid SA, Bloemfontein
For
Respondent : C L Burke
Instructed
by:
Director
Public Prosecutions, Pretoria
Director
Public Prosecutions, Bloemfontein