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[2015] ZASCA 132
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Negondeni v The State [2015] ZASCA 132 (29 September 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 00093/2015
Reportable
In the
matter between:
RICHARD
NEGONDENI
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Negondeni
v the State
(00093/15)
[2015] ZASCA 132
(29 September 2015)
Coram:
Leach,
Willis
and Mathopo
JJA
Heard:
28 August 2015
Delivered:
29 September 2015
Summary:
Criminal trial –
accused given no warning of prospect of minimum sentence –
accused having incompetent legal representative
selected by the judge
– s 112 of
Criminal Procedure Act 51 of 1977
not properly
applied – accused did not have a fair trial - conviction and
sentence set aside – matter remitted to the
court a quo for
trial de novo before a different judge.
ORDER
On
appeal from
:
Limpopo Local
Division of the High Court,
Thohoyandou,
(
Renke
A
J sitting as the court
of first instance)
1
The appeal is upheld.
2
The convictions and sentences
in respect of all counts are set aside.
3
The case is remitted to
the court a quo for trial de novo before a different judge.
JUDGMENT
Willis
JA (Leach and Mathopo JJA concurring):
[1]
The appellant, Mr Richard Negondeni, was indicted in the Limpopo
Local Division, Thohoyandou High Court (Renke AJ) on a count
of
murder, a count of robbery and two counts of rape. He pleaded guilty
in terms of s 112 of the Criminal Procedure Act 51 of 1977
(the
Criminal Procedure Act) and
was convicted on all four counts. He was
sentenced to life imprisonment on the count of murder, with which
lesser sentences imposed
on the other counts were ordered to run
concurrently. With the leave of this court, he appeals against his
convictions and sentences
on all counts.
[2]
The indictment alleges, in relation to the murder count, that the
appellant killed an adult female, Ms Ntsombeni Makhanye (the
deceased), on 2 April 2002 at Ha-Dumasi, in the district of
Thohoyando; in relation to the first count of rape that he did so in
respect of the same person at the same place at about the same time;
in relation to the count of robbery that, using force and
violence,
he took the deceased’s cellular telephone from her at about the
same place and time; and, in relation to the second
count of rape,
that he committed the crime on 6 February 1999 at the Thohoyando
Technical School, his victim having been another
woman, Ms Sylvia
Netshiavha. The indictment made no reference to the prescribed
minimum sentences set out in the
Criminal Law Amendment Act 105 of
1997
.
[3]
In the summary of substantial facts annexed to the indictment it is
alleged that ‘before leaving the scene (where the
rape of the
deceased had been committed), the accused robbed the victim and then
stoned her to death.’ It is also alleged
that the deceased’s
decomposed body was recovered in the bush at Ha-Dumasi on 11 July
2002 and that: ‘The cause of
death could not be determined
because of the advanced state of decomposition of the deceased’s
body.’ In respect of
the second count of rape, the summary
alleges that the victim was forcefully taken by the appellant from a
shopping complex and
then raped in the bush at knife-point.
[4]
At the commencement of the appellant’s trial on 19 February
2007, the state prosecutor informed the court that he had
been given
to understand, from the court orderlies, that the appellant no longer
wished to be represented by his legal representative,
appointed by
‘the Law Clinic’. The appellant’s legal
representative appeared to have been taken by surprise by
this and
said: ‘I have never heard anything. Can he just speak for
himself?’ The judge then asked the appellant whether
he had ‘a
problem’. The appellant replied that he did not have a problem
‘so far’ but said: ‘It is
just that we have not yet
finished a consultation.’ After further questioning, the
appellant repeated his complaint that:
‘We have not consulted
sufficiently.’ The judge then said that the trial should
proceed but the appellant could consult
with his legal representative
during the adjournments of the court.
[5]
The counts were then put to the appellant. He pleaded guilty to the
first count of murder but, immediately thereafter, when
asked by the
judge to confirm this, said: ‘Maybe I did not understand well.’
Further discussions took place between
the appellant and the judge
whereupon the appellant said: ‘I do understand but when I am
asked to plead on the charge of
murder I am not so sure as to whether
I should plead not guilty or I should explain the circumstances.’
The court then decided
that the matter should stand down to the next
day so that the appellant could consult more fully with his legal
representative.
His legal representative then informed the court that
he would not be available the next day. At this, the court said:
‘
I
do not want, and I will not tolerate any further delays in the
proceedings. The witnesses are inconvenienced and so am I, and
I want
to proceed with this matter tomorrow. I personally arranged with
experienced counsel, Mr Dzumba, to come down now to see
him. Mr
Dzumba will take over his defence.
’
[6]
The next day the trial proceeded with counsel, Mr Dzumba, appearing
as the appellant’s legal representative. At the commencement
of
the proceedings on that day the court asked the appellant whether he
was satisfied ‘with the change in his legal representation’.
The appellant replied: ‘I am satisfied.’
[7]
The appellant was then asked to plead once more, and on this occasion
he pleaded guilty to all four counts. Mr Dzumba
then read into
the record a written statement by the appellant in terms of
s 112
of
the
Criminal Procedure Act. It
reads as follows:
‘
1.
I, the undersigned, RICHARD NEGONDENI, hereinafter referred to as
Accused, do hereby plead guilty to all the four counts, namely
that
of murder, rape, robbery and rape, and explain as follows for the
first three counts:
2.
On the 2
nd
April 2002 as indicated in the indictment, I
met the deceased NTSOMBENI MAKHANYE at the Thohoyandou Shopping
Complex.
3.
I asked her to accompany me to Ha-Dumasi and we boarded the taxi
together.
4.
On arrival at Ha-Dumasi we sat in some bushes and I forced to have
sexual intercourse with her, without her consent.
5.
We quarreled and I hit her on the head with a stone. She fell down
and never spoke again. I then got shocked, frustrated and
confused.
6.
I took her cellphone and left for home. I decided to tell nobody
about what had happened.
7.
In connection with count 4, I plead also guilty to the second charge
of rape. I admit that I met one Sylvia Netshiavha at the
Thohoyandou
Shopping Centre on the 6
th
February 1999.
8.
I proposed love to her and together we went to Block F not far from
the Thohoyandou Technical School.
9.
In the buses not far from the said school I forced one Sylvia
Netshiavha to have sexual intercourse with me without her consent.
10.
Afterwards, the victim, one Sylvia Netshiavha, reported the matter to
the police and I was arrested later that day.
I
know and understand that it is unlawful to kill another person
intentionally without any justifiable ground.
I
further know that it is unlawful to intentionally take another
person’s property without her permission.
I
further know that it is unlawful to intentionally have sexual
intercourse with a female person without her consent.
’
[8]
The judge then asked the appellant whether the statement was correct.
The appellant confirmed that it was. The judge then enquired
from the
appellant as to the size of the stone that was used to hit the
deceased. After the appellant had demonstrated, it was
agreed among
all concerned that it was ‘about the size of a soccer ball’
[1]
.
The court then proceeded to find the appellant guilty on all four
counts.
[9]
The first issue that arises is whether this terse statement,
especially insofar as it relates to the count of murder, is
sufficient
to satisfy the requirements of s
112
(1)
(b)
of
the
Criminal Procedure Act which
reads as follows:
‘
the
presiding judge, regional magistrate or magistrate shall, if he or
she is of the opinion that the offence merits punishment
of
imprisonment or any other form of detention without the option of a
fine or of a fine exceeding the amount determined
by the
Minister from time to time by notice in the
Gazette
,
or if requested thereto by the prosecutor, question the accused with
reference to the alleged facts of the case in order to ascertain
whether he or she admits the allegations in the charge to which he or
she has pleaded guilty, and may, if satisfied that the accused
is
guilty of the offence to which he or she has pleaded guilty convict
the accused on his or her plea of guilty of that offence
. . . .’.
[10]
It has been made clear in
S
v Mbuyisa
[2]
that
s 112
(b)
contemplates
admissions of facts and not admissions of law or legal
conclusions.
[3]
In
S v Lebokeng en ‘n
ander
[4]
it was stressed that the court
should be satisfied not only that the accused committed the act in
question but that he committed
it unlawfully and with the necessary
mens rea.
As
was stated in
S v Nyanga
‘
Section
112(1)
(b)
questioning has a twofold purpose. Firstly, to establish the factual
basis for the plea of guilty and secondly to establish the
legal
basis for such plea. In the first phase of the enquiry, the
admissions made may not be added to by other means such
as a process
of inferential reasoning. (
S
v Nkosi
1986 (2) SA 261
(T) at 263H-I;
S
v Mathe
1981 (3) SA 664
(NC) at 669E-G;
S
vJacobs
(supra at 1177B)
(1978 (1) SA 1176
(C) at 1177B). The second
phase of the enquiry amounts essentially to a conclusion of law based
on the admissions.
From the admissions the court must conclude
whether the legal requirements for the commission of the offence have
been met.
They are the questions of unlawfulness,
actus
reus
and
mens
rea
.
These are conclusions of law. If the court is satisfied that
the admissions adequately cover all these elements of
the offence,
the court is entitled to convict the accused on the charge to which
he pleaded guilty.
[11]
From the record, it is not clear, beyond reasonable doubt, whether
the appellant admitted that his act of hitting the deceased
on the
head with a stone caused her death. In addition, the appellant’s
statement that he was shocked, confused and surprised
cries out for
further enquiry, as it is not clear whether the appellant even
admitted that he had acted with the requisite intent
– either
in the form of dolus directus or dolus eventualis – to kill the
deceased, for a conviction on the count of
murder properly to be
made. It is therefore not even certain whether the correct conviction
would have been culpable homicide.
The conviction on the count
of robbery and both counts of rape may be justified, if one has
regard to the contents of the
statement, but clearly the appellant
ought not to have been convicted of murder merely on the strength of
the
s 112
proceedings.
[12]
In addition, as appears from what is set out below, the events that
occurred after the appellant’s conviction, shows
that he did
not enjoy a fair trial. After a previous conviction for assault
perpetrated in 1990 was proven against him, the judge
then enquired
from counsel for the State and the defence whether the minimum
sentencing provisions of
s 51
of the
Criminal Law Amendment Act 105
of 1997
were of application and, if so, what they prescribed in
relation to the appellant’s convictions. It is clear, from the
record
that both the judge and the appellant’s counsel were
unaware of what that Act in fact provided. Indeed it led to the judge
adjourning in order to discuss the provisions of the
Criminal Law
Amendment Act with
counsel in chambers. This in itself was irregular.
It was a discussion which ought to have taken place in open court.
Importantly,
counsel for the State did not bring the minimum
sentencing provisions to the attention either of the appellant or the
court before
this enquiry was made, and the appellant’s plea
was therefore clearly tendered without his knowing of them.
[13]
After the adjournment, the appellant was briefly led in mitigation.
This established that the appellant was 32 years of age
at the time,
he left school during standard nine, had been working at a bakery at
the time of his arrest in respect of counts 1
to 3 and was married
with two school-going children. He said he felt ashamed at what he
had done and was sorry for the pain which
he had caused the family of
the deceased and the victim of the second count of rape. The state
prosecutor cross-examined the appellant
as to the second count of
rape. The appellant explained that, although he had been arrested
shortly after the date relating to
count four, ‘the matter was
not proceeded with’, he had gone to the parents of his victim
‘to settle this issue’
and was later informed in court
that ‘the charge was through’. Apart from this, no
further evidence was adduced from
the appellant as to the
circumstances under which the offences were committed.
[14]
The State led the evidence of a police officer and the father of the
deceased as to the state of decomposition of the deceased’s
body and that she had been identified by her clothing. Photographs
taken by the forensic photographer of the deceased’s badly
decomposed body, shortly after it had been discovered, were handed in
as exhibits. The complainant in respect of the second count
of rape
was called by the State to testify. She confirmed that she had
non-consensual sexual intercourse with the appellant although
the
circumstances in which she agreed to accompany the appellant on a
walk from the shopping centre to the technical college were
sketchily
put before the court. When asked whether she was scared of men now,
as a result of the rape, she replied: ‘No.’
[15]
The court a quo then proceeded to sentence the appellant to life
imprisonment on the count of murder, holding that it was obliged
to
do so in terms of the
Criminal Law Amendment Act, on
account of the
close association between the rape and murder of the deceased. The
appellant had at no stage in the trial or, it
would appear from the
record, at any time before that, been warned by the court that, if
convicted, he faced the risk of life imprisonment.
The court a quo
also sentenced the appellant to ten years’ imprisonment for the
rape of the deceased, two years for the robbery
and ten years for the
rape of Ms Sylvia Netsiaba. The sentences on counts two, three and
four were, as mentioned previously, ordered
to run concurrently with
the sentence on count 1. In any event, in terms of
section 39
(2) of
the
Correctional Services Act, No 111 of 1998
, the sentences on
counts two, three and four would automatically run concurrently with
the sentence of life imprisonment.
[16]
In view of the appellant’s patently concerned and hesitant
stance at the commencement of the trial, the court a quo
was at the
outset of the proceedings wrong in insisting that the trial proceed
as it did. However well-intentioned the court a
quo may have been in
appointing Mr Dzumba to act for the appellant, and even though the
appellant confirmed the next day that he
was satisfied with this
arrangement, it was wrong for the court a quo to have prevailed upon
him to accept the arrangement. Quite
apart from any other
difficulties concerning issues of principle that may exist with this
course of action, it did not afford the
appellant the time for a
proper consultation to be held. This legal representative’s
apparent lack of awareness about the
minimum sentencing provisions in
the
Criminal Law Amendment Act is
indicative of the fact that the
appellant did not have the quality of legal representation that one
could reasonably expect, especially
in so gravely serious a case.
This court has repeatedly stressed the importance of warning a person
of the risk of minimum sentences
being imposed.
[5]
In the circumstances of this particular case, the injustice of the
appellant not having been so warned is manifest. This is all
the more
obvious in a case in which a legal representative appointed at the
11
th
hour is not fully aware of the implications of the minimum sentencing
legislation. Against this background the appellant did not
have a
fair trial.
[17]
When the well settled law relating to the procedural fairness of an
accused person’s trial is applied against the aggregate
of the
facts and circumstances of this case, one’s sense that the
appellant did not have a fair trial is compounded.
The
right of every person to a fair trial
is
a
constitutional one.
[6]
That right was infringed and for that reason the conviction and
sentence cannot be allowed to stand.
[18]
What is to be done? On the one hand, the appellant manifestly did not
have a fair trial. Against this, the State, the victims
and their
families of serious crimes such as these, including the family of the
deceased also have an interest in the appellant
not being allowed to
walk free, without further ado. In this regard the provisions of
s
312
of the
Criminal Procedure Act are
of importance They provide as
follows:
‘
(1)
Where a conviction and sentence under
section 112
are set aside on
review or appeal on the ground that any provision of subsection (1)
(b)
or subsection (2) of that section was not complied with, or on the
ground that the provisions of
section 113
should have been applied,
the court in question shall remit the case to the court by which the
sentence was imposed and direct
that court to comply with the
provision in question or to act in terms of
section 113
, as the case
may be.
(2)
When the provision referred to in subsection (1) is complied with and
the judicial officer is after such compliance not satisfied
as is
required by
section 112
(1)
(b)
or
112
(2),
he
shall enter a plea of not guilty whereupon the provisions of
section
113
shall apply with reference to the matter.’
[19] In
S
v Tshumi & others
[7]
James JP, with Milne J concurring, said:
‘
It
is clear that the magistrate failed to appreciate what his duty was
as laid down by
sec. 112
, and failed to satisfy himself on a number
of important questions such as whether it was established by the
answers that the accused
either individually or collectively acted
unlawfully, or with common purpose in assaulting the deceased.
In fact the magistrate
appears to have completely failed to grasp the
fact that since
sec. 112
(1)
(b)
makes it possible to dispense with evidence
to
establish all the essential elements of the charge, his questions
must be directed to satisfying himself that an accused fully
understands all the elements of the charge when pleading guilty,
and that his answers reveal that he has in fact committed
the actual
offence to which he has pleaded guilty.
’
[8]
Having
found that the conviction could not stand, James JP continued as
follows:
‘
What
should now be done? Clearly the convictions and sentences cannot
stand, nor is it possible, since the magistrate has retired,
for the
case to be remitted to him to deal correctly with it by making
proper use of the provisions of
sec. 112
(1)
(b)
.
Justice will, I consider, be done in these circumstances if the case
is sent back for trial by another magistrate.
The
convictions and sentences are accordingly set aside and the case is
sent back for trial
de
novo
by another magistrate.
’
[9]
[20]
Other cases in which it has been decided that a trial de novo is
appropriate in circumstances such as this include
S
v Witbooi & others,
[10]
S
v
Mokoena
,
[11]
S
v Van Deventer
[12]
S
v Mbova en andere
[13]
,
S v
Williams
[14]
and
S v Mofokeng.
[15]
In
S
v Heugh & others
[16]
the case was remitted to the magistrate for him to deal with, in his
discretion, in terms of
s 113
of the
Criminal Procedure Act
[17
]
.
See also Mkhize v the State & another Nene & others v the
State & another
.
[18]
In
S v Fikizolo
[19]
the
conviction and sentence was set aside, consequent upon shortcomings
applying the provisions of
s 1
12 of the
Criminal Procedure Act
properly
, without ordering a trial de novo, but there were additional
serious misdirections by the magistrate that compelled the appeal
court to do so.
[20]
Each case must be decided on its own merits. In particular, as to
whether the trial should be heard de novo, the interests of justice,
not only with respect to an accused person but also the State and
society as a whole should be taken into consideration.
[21]
Even before
s 112
of the
Criminal Procedure Act came
into operation,
there was precedent in this court for remitting a trial for a hearing
de novo where procedural irregularities had
been committed and the
interests of justice require it.
[21]
[22]
During the course of argument, counsel for the appellant placed
considerable reliance on the unreported judgment in this court
in
S
v Mudau
[22]
in which this court recognised that, where a trial had been tainted
by procedural unfairness, a court of appeal had a discretion
to remit
the matter for a hearing de novo. Although in that case the court
declined to do so, each case must be decided on its
own merits and
the facts of
Mudau
were materially different from this one. In this case, despite the
period of imprisonment that the appellant has already served,
the
interests of justice require a fresh trial. The appellant, after all,
faces a possible life sentence should he properly be
convicted.
[23]
In all the circumstances of this case, the interests of justice will
best be served by setting aside the convictions and sentences
and
remitting the matter for a trial de novo. It is appropriate, against
the full canvas of events, to direct that the trial be
heard by a
different judge.
[24]
One further aspect should be mentioned. At the commencement of the
appellant’s application for leave to appeal, his then
legal
representative (who had neither appeared at his trial and who did not
argue his appeal) stated that he agreed with the conviction
and
sentence ‘meted out by the court’ and that he had
explained to the appellant that he had ‘no prospects of
success’ in the matter and that, if he wished to proceed, he
would have to do so ‘on his own’. With that he abandoned
the appellant to argue the application in person. This is
inexplicable. As should be apparent from what has been set out above,
there was much to be said. It also constituted an extraordinary
dereliction of the duty of defence counsel to do their best, even
if
they privately consider the case to be a hopeless one. On his own,
the appellant performed rather well. For example, he submitted
that
the killing of the deceased could be construed as ‘an accident’
and ‘it was not like it was planned that
I wanted to kill
somebody or the deceased for that matter.’
[25]
The following order is made:
1
The appeal is upheld.
2
The convictions and sentences
in respect of all counts are set aside.
3
The case is remitted to the
court a quo for trial de novo before a different judge.
_________________________
N
P WILLIS
JUDGE
OF APPEAL
A
PPEARANCES:
For the
Appellant:
S O Ravele
(Attorney)
Instructed by:
S O Ravele Attorneys, Makhado
c/o
Phatsoane
Henney Attorneys
,
Bloemfontein
For the
Respondent:
M Sebelebele
Instructed by:
The Director of
Public Prosecutions
,
Thohoyandou
The Director of Public Prosecutions,
Bloemfontein
[1]
In
S
v Makhaya
2004 (1) SACR 444
(C); JOL 12062 (C) it was held that it is
‘undesirable that the accused should do any demonstration in
court’ for
purposes of
section 112(1)(
b)
but, in the circumstances of this case that issue is irrelevant.
[2]
S v Mbuyisa
2012 (1) SACR 571
(SCA); (183/1) [2011] ZASCA 146.
[3]
Para
7. See also
S
v Zerky
2010
(1) SACR 460
(KZP) para 20; (R421/09)[2009] ZAKZPHC 17.
[4]
S v Lebokeng
en ‘n ander
1978 (2) SA 674
(O)
;
[1978] 3 ALL SA 139
(O).
See
also
S v Ngubane
1978
(2) PH H189 (N);
(30/83)
[1985] ZASCA 41
;
S v
Mon
i
z
1982 (1) SA 41
(C) 46
;
[1982] 3 ALL SA 157
(C);
S
v Phikwa
1978
(1) SA 397
(E);
[1978] 1 ALL SA 557
(E);
S
v Tshumi
&
others
1978 (1) SA
128
(N
);
[1978] 1 ALL SA 273
(N);
S
v
Mthetwa;
S v
Khanyile
1978 (2) SA 773
(N);
[1978]
2 ALL SA 328
(N);
S
v Serumala
1978 (4) SA 811
(NC);
[1978]
4 ALL SA 733
(NC).
S
v Naude
1978 (1) SA 566
(T);
[1978]
1 ALL SA 685
(T);
S
v Thobejane
1978 (1) PH
H116 (T);
S v Jacobs
1978
(1) SA 1176
(C) 1178;
S v
Medupa
1978 (2) PH H125
(O);
S v Matlabeng en
‘
n ander
1983
(4) SA 431
(O) and
S v
Mbova
en andere
1996 (1)
SACR 239
(NC) 24
2
(
I
)
.
[5]
See, for example,
S
v Legoa
2003 (1) SACR 13
(SCA) paras 20 and 21; (33/2002)[2002] ZASCA 122;
S
v Ndlovu
2003 (1) SACR 331
(SCA) para 12; (75/2002)
[2002] ZASCA 144
; and
S
v Makatu
2006 (2) SACR 582
(SCA) paras 3 and 17; (245/05)
[2006] ZASCA 72.
[6]
See
s 34 of the
Constitution, 1996.
[7]
S v Tshumi &
others
1978 (1) SA
128 (N)
;
[1978] 1 ALL SA 273 (N).
[8]
At 130B-D.
[9]
At 130G-H.
[10]
S v
Witbooi & others
1978
(3) SA 590 (T)
;
[1978] 2 ALL SA 641 (T).
[11]
S v
Mokoena
1982
(3) SA 967
(T); [1982] 4 ALL 461 (T).
[12]
S v Van
Deventer
1978
(3) SA 97
(T);
[1978] 2 ALL SA 573
(T).
[13]
S v Mbova en
andere
1996 (1)
SACR 239
(NC)
.
[14]
S
v Williams
2008
(1) SACR 65
(C); (29/04/07) [2007] ZAWCHC 48.
[15]
S v Mofokeng
2013 (1) SACR 143
(FB)
;
(191/2012)
[2012] ZAFSHC 117.
[16]
S v Heugh
&
others
1997
(2) SACR 291 (E); [1997] JOL 1408 (E).
[17]
Section 113
of the
Criminal Procedure Act reads
as follows:
(1) If the court at any
stage of the proceedings under
section 112
(1)
(a)
or
(b)
or
112
(2) and before sentence is passed is in doubt whether the
accused is in law guilty of the offence to which he or she has
pleaded
guilty or if it is alleged or appears to the court that the
accused does not admit an allegation in the charge or that the
accused
has incorrectly admitted any such allegation or that the
accused has a valid defence to the charge or if the court is of the
opinion for any other reason that the accused's plea of guilty
should not stand, the court shall record a plea of not guilty and
require the prosecutor to proceed with the prosecution: Provided
that any allegation, other than an allegation referred to above,
admitted by the accused up to the stage at which the court records a
plea of not guilty, shall stand as proof in any court of
such
allegation.
(2)
If the court records a plea of not guilty under subsection (1)
before any evidence has been led, the prosecution shall proceed
on
the original charge laid against the accused, unless the prosecutor
explicitly indicates otherwise.
[18]
Mkhize v the
State & another Nene
&
others
v
the State & another
1981
(3) SA 585 (N); [1981] 1 ALL SA 195 (N).
[19]
S v Fikizolo
1978
(2) SA 676 (NC)
;
[1978] 3 ALL SA 229 (NC).
[20]
See for example
S
v Fikizolo
1978
(2) SA 676 (NC).
[21]
See for example
R
v Zackey
1945 AD 505.
See also
R
v Read
1924 TPD 718
and
S
v Vezi
1963 (1) SA 9
(N);
[1963] 1 ALL SA 315
(N);
R
v Foley
1926 TPD 168
and
R
v Cohen
1942 TPD 266
at 273.
[22]
S v Mudau
(276/13)
[2013]
ZASCA 172
(28 November 2013.