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[2017] ZAGPJHC 383
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Grobler v S (A40/2013) [2017] ZAGPJHC 383 (12 December 2017)

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Certain
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REPUBLIC
OF SOUTH AFRICA
THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
Case
Number:
A40/2013
Reportable:
Yes
Of
interest to other judges: Yes
Revised:
No
12
December 2017
In
the matter between:
MORNE
GROBLER
Appellant
and
THE
STATE
Respondent
[1]
Summary:
The SCA set aside the sentence handed down by this Court on appeal to
it (of 10 years 5 of which were conditionally suspended for
rape of a
child and other related offences under
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 1997)
,
on
the basis that this Court committed an error in law by imputing
consent to a child below the age of 12 and considering this
imputation in its sentence. It
remitted
the matter back to this Court for consideration of the sentence
afresh. On such reconsideration, this Court imposed a life
sentence
for rape of a child under the age of 16 years.
ORDER
1.
On count 1  the appellant is sentenced to
life imprisonment;
2.
Counts 2 ,3, 4, 5, and 7 are taken together for
the purposes of sentencing and the appellant is sentenced on these
counts
to 10 years imprisonment;
3.
All such  sentences will be calculated to
run from 03 June 201
JUDGMENT
FISHER
J (MUNZHELELE AJ CONCURRING):
INTRODUCTION
[2]
This is the reconsideration of
sentence handed down by this Court
(Preller
J and Kganyago AJ) on appeal of a decision of the Regional Court
Limpopo in relation to both conviction and sentence of
the appellant,
Mr Grobler.
[3]
The reconsideration of the sentence in this case is pursuant to the
remittal by of the SCA (per Petse JA - Lewis and Mathopo
JJA and
Gorven and Mbatha AJJA concurring
)
of
the sentence to this court following a successful appeal by the State
in the matter of
Director
of Public Prosecutions, Gauteng v Grobler
[1]
(on the basis that the imputation of consent to a child below the age
of 12 and the consideration of this imputation in the sentencing
of
the appellant, was a matter of law).
[4]
The appellant was arraigned in the Regional Court on the following
seven charges:
(a)
three counts of rape in
contravention of s 3 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 1997
(the Sexual Offences Act); (counts
1 to 3);
(b)
using a child for child
pornography in contravention of s 20(1) of the Sexual Offences Act
(count 4);
(c)
exposing, displaying or
causing the exposure or displaying of   pornography to a
child in contravention of s 19
(a)
of the Sexual
Offences Act (count 5);
(d)
sexual grooming of a
child in contravention of s 18(2)
(a)
of the Act (count
6);  and
(e)
possession of a film or
publication containing child pornography in contravention of s
27(1)
(a)
(i)
of the Films and Publications Act 65 of 1996 (the Films Act) (count
7).
[5]
He pleaded not guilty to all seven counts.
BACKGROUND
[6]
The appellant and the complainant’s mother married each other
during September 2006 when the complainant was about 7 years
old. The
allegations against the appellant were that, on various occasions
during 2009, when the complainant was about 10 years
old, the
appellant penetrated the complainant’s vagina, anus, and mouth
with his penis and that he took photographs of these
sexual acts with
his cellular phone thus creating pornographic material, and
transferred and stored these on the family computer.
It was also
alleged that he had shown the complainant pornographic images of him
and her mother having sex and that he sexually
groomed the
complainant.  At the time when this occurred, the complainant,
and her younger brother, lived with the appellant
and their mother at
the Air Force Base in […]. The complainant and her brother
were children from a previous relationship
of their mother.
[7]
All of the offences were alleged to have been committed during the
period September to November 2009 at the family home on various

occasions when the complainant’s mother was not at home.
[8]
At the conclusion of the trial, the appellant was convicted on counts
1, 2, 3, 4, 5, and 7, but was acquitted on count 6.
[9]
After hearing both the defence and the State on mitigation and
aggravation of sentence, the regional magistrate sentenced the

appellant as follows:
(a)
in terms of s 513, of
the Criminal Law Amendment Act 105 of 1997 (the CLA Act) to life
imprisonment on each of the three rape counts.
(b)
The three remaining
counts (counts 4, 5 and 7) were treated as one for purposes of
sentence and a sentence of 10 years imprisonment
was imposed.
[10]
In addition, the regional magistrate directed that the appellant’s
particulars be recorded in the sexual offences register
in accordance
with s 50(2)
(a)
4
of the Sexual Offences Act.
[11]
The sentences of life imprisonment were imposed in respect of counts
1 to 3 were, in consequence of the finding by the regional
magistrate
that there were no substantial and compelling circumstances such as
would justify a departure from the mandatory sentence.
[2]
[12]
The appellant unsuccessfully applied to the regional court for leave
to appeal in terms of s 309B of the Criminal Procedure
Act (the CPA).
However, the appellant successfully petitioned the High Court for
leave to appeal in terms of s 309C of the CPA.
[13]
This Court (per Preller J) found on appeal:
(a)
In regard to count 1,
the rape conviction was upheld
(b)
In
regard to counts 2 and 3, the rape convictions were aside and each
substituted with convictions of sexual assault in contravention
of s
5(1) of the Sexual Offences Act
[3]
.
(c)
In regard to counts 4,
5, and 7, the convictions were upheld.
[14]
In dealing with sentence, the Court found that the trial court had
overlooked material factors in relation to the inquiry as
to whether
or not substantial and compelling circumstances existed, it said:
“
The
personal circumstances of the appellant, the fact that he is a first
offender who spent 18 months in custody awaiting trial,
the nature of
his offence and the limited effect that it had on the complainant and
the serious consequences that his offence already
had for himself,
cumulatively constitute substantial and compelling circumstances that
justify the imposition of a lesser sentence”.
[15]
It then treated all counts (including the rape) as one for the
purposes of sentence and imposed a sentence of ten years’

imprisonment, five years of which were conditionally suspended.
[16]
The State (as DPP) applied for and was granted special leave to
appeal against this sentence to the SCA on a point of law
[17]
This appeal was then brought in terms of s 311(1)(a) which
provides:
“
Where
the provincial or local division on appeal, whether brought by the
attorney-general or other prosecutor or the person convicted,
gives a
decision in favour of the person convicted on a question of law, the
attorney-general or other prosecutor against whom
the decision is
given may appeal to the Appellate Division of the Supreme Court,
which shall, if it decides the matter in issue
in favour of the
appellant, set aside or vary the decision appealed from and, if the
matter was brought before the provincial or
local division in terms
of-
(a)
section 309(1), re-instate the conviction, sentence or order of the
lower court appealed from, either in its original form or
in such a
modified form as the said Appellate Division may consider desirable;
…”
[18]
The SCA held that the imputation of consent to a child below the age
of 12 and the consideration of this imputation in the
sentencing of
the appellant was indeed a question of law falling within s 311 of
the CPA in that s 57(1) of the Sexual Offences
Act provides that a
person under the age of 12 years is incapable of consenting to a
sexual act.
[19]
The SCA thus found that, in the interests of justice, the sentence of
this Court on appeal should be set aside and that it
be remitted to
this Court for a proper determination of the sentence. In this regard
the SCA held as follows
[4]
:
“
Counsel
were agreed that if we came to the conclusion that the appeal must
succeed, as we have, it would be desirable to remit the
case to the
High Court for a proper determination of sentence in light of this
judgment. This is, however, not expressly provided
for in s 311 of
the CPA. But in Attorney-General (Transvaal) v Steenkamp
1954 (1) SA
351
(A) at 357F-G, this court – in the course of dealing with
the predecessor to s 311 – said that in a situation such as
the
present the case could be remitted as ‘it could hardly have
been the intention of the legislature that, where the order
of this
court does not finally dispose of the issues raised in the first
Court of Appeal, some of those issues must . . . be left
hanging in
the air’. Furthermore, having regard to the lapse of time since
the imposition of sentence by the trial court,
the course suggested
by counsel seems to me to be eminently reasonable as the sentence
will have to be considered afresh. The appellant
may well have
already served the whole or part of the sentence imposed by the High
Court. Accordingly, whatever fresh sentence
will be imposed on him,
will necessarily have to take this factor into account”.
DISCUSSION
[20]
This Court thus comes to consider the question of sentence against
this background. To my mind this involves a reconsideration
of the
sentence imposed by this Court on appeal from the regional court,
which takes into account the following:
(a)
The facts of the matter
relevant to sentencing as found to be proved by the Regional Court
and not rejected by this Court on appeal;
(b)
The convictions as
upheld and as set aside and varied by this Court on appeal;
(c)
The provisions of s
309(1) of the CPA which provides that, in the normal course of the
operation of such section, the order of the
lower court appealed from
is to be a starting point;
(d)
The legal principles
that pertain to a consideration of sentence afresh in respect of each
standing conviction.
The
relevant facts
[21]
The appellant was found to have engaged, during the period 2 to 5
September 2011, in the following conduct in relation to the

complainant, his stepdaughter who was then between 10 and 11 years
old :
(a)
He placed his penis
against her vagina and into her labia – although never
penetrated her vaginally or anally.
(b)  He placed his
penis between her buttocks and against her anus;
(c) He placed his penis
in her mouth.
(d) He photographed
instances of the above conduct on his cellular telephone and
downloaded the resultant pornographic images onto
a computer.
(e) He photographed the
complainant naked, at least from the waist down, and posed in such a
way that her anus and vagina were displayed
in a pornographic manner
and, again, downloaded these images onto a computer.
(f) He touched the
complainant on her vagina and anus.
(g) He showed the
complainant a pornographic DVD containing men and women engaged in
explicit sexual conduct
(h)
He showed the complainant images of her mother and himself engaging
in sexual activity.
[22]
The conduct of the appellant occurred when the mother of the
complainant was out of the house and when the complainant was
thus in
his care and at his disposal.
[23]
The photographs of the complainant were fortuitously discovered by
her mother and were then shown to a relative which ultimately
led to
the arrest of the appellant and the ultimate charges and convictions.
[24]
The touching by the appellant of the complainant on her vagina and
anus was not confined to the occasions that related to the
charges
but had happened on other occasions when she was alone with the
appellant. In this regard she could not say on how many
occasions
this had occurred – but it was more than 10. The appellant told
the complainant that if she told anyone of his
aforesaid conduct
“
there
would be trouble
”.
The complainant was afraid of the appellant and aware that he had
power and authority over her. He would, on occasion,
resort to
hitting her in the course of disciplining her - and this had an
impact on the way she related to him as a parental figure
in her
life.
[25]
The appellant was represented in the Regional Court and in all the
proceedings, which followed – including these. The
following
was placed before the court on his behalf in mitigation of sentence
on 03 June 2011:
(a)
He was 35 years old at
time of sentencing;
(b)
He was a first
offender;
(c)
He had been in custody
for 18 months prior to being sentenced;
(d)
He had been employed as
a member of the South African Air Force although his rank was not
mentioned;
(e)
He was stationed and
resident with his family at the air force base in […] and had
been for two years at the time of the
crimes in issue;
(f)
He provided for his
family (which comprised the mother of the complainant, the
complainant her brother)  financially;
(g)
He had a good marriage
relationship with the complainant’s mother;
(h)
As to his
childhood:
i.
he had been adopted at
an early age;
ii.
He was maltreated by
his adoptive family;
iii.
This included being
sexually abused by an older stepsister;
iv.
He attended a boarding
school where he was sexually abused by schoolmates – which
abuse included him being sodomized.
[26]
There appears to have been a victim impact assessment report that was
not proved by either party. It was excluded from evidence.
There was
an inference drawn by this Court that the report was, in some way,
suppressed by the regional magistrate. The suggestion
made by the
Court on appeal was that the regional magistrate may have been
deliberately excluding evidence that may have been favourable
to the
appellant. The Court stated also that there was “
an
inescapable inference that the prosecutor was hiding information that
would have assisted the
defence and that the magistrate was a
knowing party to it”.
The Court went as far as to
speculate that it was “ …
for example not
inconceivable that it may have appeared from the report that the
complainant or her mother had been the instigator
of the events in
question, which would have been an important factor for a just
decision in
the case”.
I will say more on this
aspect later in light of the observations of the SCA in relation to
the case.
The
Convictions that now apply
[27]
As set out above this Court on appeal:
(a)
Confirmed the
conviction of rape on count 1.
(b)
Set aside the
convictions of rape on counts 2 and 3;
(c)
Convicted the appellant
of two counts of sexual assault in terms of the Sexual Offences Act
in relation to counts 2 and 3;
(d)
Confirmed count 4 being the offence
of using a child for child pornography in contravention of s 20(1) of
the Sexual Offences Act;
(e)
Confirmed count 5 being the offence
of  exposing, displaying or causing the exposure or displaying
of child pornography in
contravention of s 19
(a)
of the Sexual
Offences Act;
(f)
Confirmed count 7 being
possession of a film or publication containing child pornography in
contravention of s 27(1)
(a)
(i)
of the Films and Publications Act 65 of 1996 (the Films Act) (count
7).
Sentence
in the Regional Court
[28]
In the regional court the convictions of
rape (counts 1 to 3) were all visited with sentences of life
imprisonment on the basis
that the learned magistrate found that
there were no substantial and compelling circumstances to justify a
departure from the minimum
prescribed sentence of life imprisonment.
[29]
Counts 4, 5, and 7 were taken together by the magistrate, presumably
because they were part of the same course of conduct.
She sentences
the appellant to 10 years in respect of these offences.
[30]
This Court on appeal substituted two convictions of indecent assault
for the rape convictions in counts 2 and 3. Thus these
are sentences
in respect of which there was no sentence pronounce in the regional
court.
[31]
As set out above, on appeal, these counts were taken together with
counts 1, 4, 5, and 7 for sentencing and a sentence of 10
years with
5 years conditionally suspended was given.
Consideration
of the proper sentence in respect of each conviction
[32]
Generally, sentence is imposed only with regard to the factors and
circumstances known at the time of sentencing
[5]
. This
principle is particularly important when an appeal court has to
consider the sentence imposed by the trial court.
[33]
However, in exceptional circumstances, the court will take account of
facts which came into existence only after the trial.
In
this case, the SCA noted that the fact that some or all of the
sentence had been served as at the date of reconsideration may
be a
factor to be taken into account in the sentencing.
[34]
It bears mention that the appellant had already served his custodial
sentence as imposed by this Court by the time the SCA
set aside this
sentence aside. This has had the, somewhat anomalous result, that the
appellant has been released notwithstanding
his serious convictions.
Unfortunately, neither counsel for the State nor for the appellant
was able to inform me of the date of
his release. The parties however
agreed at the hearing that the appellant would report to the Clerk of
the Court in […]
in order to continue serving the sentence
imposed by the Regional Court in the interim to this court imposing
sentence in relation
to his convictions.
[35]
I now turn to deal with each sentence which should  be imposed
in respect of each of the convictions.
Rape
of a person under the age of 16 (count 1)
:
[36]
The view of the regional magistrate was that, as there were no
substantial and compelling circumstances, the maximum sentence
of
life imprisonment must apply.
[37]
In
S
Malgas
[6]
the Court (per Marais JA) stated that courts  are required to
regard the prescribed sentences as  “being
generally
appropriate
for
crimes of the kind specified and enjoined not to depart from them
unless they are satisfied that there is weighty justification
for
doing so”.
[38]
Eight years later in S v Vilakazi
[7]
the
Court (per Nugent JA)
re-emphasised
that the prescribed sentence “should ordinarily
and
in the absence of weighty justification
”
be imposed
[8]
.
Vilakazi
stressed
the importance of proportionality with particular reference to the
Constitutional Court judgment in
S
v Dodo
[9]
.
A judgment that “reminded us . . . that punishment
must always be proportionate to the deserts of the particular

offender – no less but also no more…”
[39]
There is no doubt that all rapes are serious but, as noted in
S
v Mqikela
[10]
they
are not all equally serious, and “the most serious are those
for which the ultimate sentence [of life imprisonment]
is intended”.
[40]
In this case, what should have been the home and sanctuary for the
child was turned into a place where she found herself subject
to the
worst threats imaginable, and this from a man who purported to be her
guardian and protector. She was subjected, not only,
to fear and
mental anguish over a protracted period of time, but also to
degradation and humiliation of a type which struck at
the very core
of her developing self. Whilst she should have been nurtured and
guided at this crucial stage of her young life,
she was predated upon
by the appellant who was opportunistic, in taking advantage of the
absences of her mother from the home.
She was deprived of the comfort
and protection of her mother and other adults by being intimidated by
the appellant into keeping
his confidences. This is not the type of
sexual abuse which allows escape for the victim from the perpetrator.
It is domestic in
nature.  The victim must reside with him at
close quarters and feel his constant gaze upon her and his presence
around her.
She must enter into the pretence of normality in the face
of extreme aberration. It is apparent that the sexual abuse of the
child
in this case was not isolated nor was there an end in sight for
her. Had the appellant not been caught, the indications are that
he
would have continued his abuse of her. The pornographic material made
by him and his preserving thereof  can only be seen
in a context
of his wishing to extend and enhance, for his purposes, whatever
personal gratification he derived from his violations
of  the
child. He has shown no remorse or regret and neither has he made any
move to take any responsibility for his crimes.
His conduct shows a
large measure of planning and deviousness.
[41]
This having been said, an appropriate sentence should reflect the
severity of the crime, while, at the same time, giving full

consideration to all the mitigating as well as the aggravating
factors surrounding the person of the offender; in other words,
the
sentence should reflect the blameworthiness of the
offender
[11]
.
[42]
To my mind, the personal circumstances of the appellant can be viewed
as mitigating only in respect of trauma in his early
life -  and
this must be given  due consideration. There can be no doubt
that his adoption at an early age by uncaring
parents and the sexual
abuse to which he was subjected would have had an impact on his
behaviour in later life. That such trauma
can result in,
inter
alia,
sexual deviancy and serious
interpersonal problems has been well documented in the field of
forensic psychology – and I accept
that this would have had
some part to play in the commission of the crimes. The observation of
the regional magistrate to the effect
that the appellant should have
sought help, although interpreted by this Court as somewhat glib, is
not entirely inapposite. When
one is aware that one’s troubled
state of mind has reached a stage where it is criminally dangerous,
especially to vulnerable
individuals, it is incumbent on such person
to seek help and guidance. On the other hand, there is no outward
indication that the
appellant was dysfunctional in other aspects of
his life. He held down a solid job and on his evidence and that of
his wife they
had a relatively good marriage. There are also no
indications of debilitating substance abuse or depression. It is
difficult for
this court to fully appreciate the emotional and
psychological deficiencies which could have caused the appellant to
lapse into
the type of depravity in issue. This is result of his
failure to address these aspects directly or at all. This failure
came about,
in the main, because the appellant has opted to maintain
his innocence throughout the proceedings.
[43]
Whilst an offender retains the right to remain silent, even at the
sentencing stage, a remorseful offender is expected to take
the court
into his confidence
[12]
.
[44]
In
S
v Andhee
[13]
the apellant claimed his innocence and did not give evidence in
mitigation of sentence. Only during his appeal did he admit his

guilt, whereupon his legal representative requested permission to
present evidence in mitigation. Smalberger JA reacted to this
turn of
events by saying that;
“
a
fter
his conviction it was open to the appellant to explain why he had
left the scene of the accident without attempting to ascertain
the
nature and extent of the deceased’s injuries. He did not avail
himself of this opportunity. Instead he persisted in his
false denial
that he was the driver. Having made his bed he must now lie upon it”
[45]
To my mind, this approach is apposite here. It must be realised that,
if any evidence in mitigation of sentence exists, there
is generally
only one chance to present it to court.
[46]
This Court treated the failure to put the victim assessment report
into evidence as a failure by the Regional Court to have
reference to
relevant evidence likely to favour the appellant. Victim assessment
reports are generally prepared for the purposes
of aggravation as
opposed to mitigation. It was rightly conceded by counsel for the
appellant that, under the present circumstances,
the victim impact
report could have no bearing on the determination of whether the
prescribed sentence should be departed from.
Even it were assumed
that the complainant would have been found  in such report to
have experienced little or no trauma as
a result of the offences,
this would not serve to ameliorate their seriousness for the purposes
of the enquiry as to whether substantial
and compelling circumstances
exist to depart from the prescribed sentence.
[47]
The finding by this court that the failure to admit this report was a
misdirection of the trial court was misguided. Indeed
such finding
was as a result of his own misdirection. It was no doubt brought
about by the pervasive error of this Court on appeal
in assuming that
any supposed complicity of the child in the events could ever be
relevant to the sentencing.
[48]
This erroneous treatment of the report led the court to cast serious
aspersions on the conduct of the prosecutor and the regional

magistrate which were to the effect that they had failed in their
professional duties in suppressing information in the form of
the
report which could have favoured the appellant. In light of the
findings of the SCA, and the course which this matter has taken
it is
clear that these assertions were unwarranted.
[49]
In my view, the regional magistrate was correct in finding that there
are no circumstances which allow for a departure from
the prescribed
sentence of life imprisonment and, having considered the sentence
afresh as directed by the SCA, such a sentence
is again imposed.
[50]
The appellant has served a relatively significant period of
incarceration both awaiting trial (18 months) and the time served

already on sentence. Accordingly it would be proper for the sentences
to run from the date of original sentencing in the regional
court –
being 03 June 2011.
The
other counts – 2, 3 , 4, 5, and 7 (
of
sexual assault ; using a child for child pornography ;
exposing, displaying  of child pornography; possession of

child pornography )
[51]
Where there is a close link between counts and where the elements of
one are closely bound up with the elements of another,
the
concurrence of sentences should be considered
[14]
.
[52]
While the CPA does not specifically provide for counts to be taken
together for the purposes of sentencing, this is often done, mainly

in cases where the various counts are essentially part of one
transaction, operation, or process. The appeal court took these
counts together for the purposes of sentencing – presumably for
this reason. The magistrate did the same, save in relation
to
sentences on the convictions of rape on counts 2 and 3. In any event,
given the imposition of imprisonment for life, the effect
would be
the same – in that any other sentence would be served
concurrently with that sentence
[15]
.
[53]
I am of the view that this Court and the Regional Court were not
incorrect in taking this approach.
[54]
I do however find that the suspension by this Court of the sentence
of 10 years in the circumstances was shockingly inappropriate.

It serves to create the impression that the crimes are trivialized.
It appears that the imputation of acquiescence of the child
was also
a basis for the suspension of the sentence in this instance.
[55]
I thus consider it a proper approach for 10 years imprisonment to be
imposed in relation to these counts.
ORDER
[56]
For the reasons stated in this judgment the sentence of this court on
appeal having been set aside by the SCA the following
sentence is
imposed:
1. On count 1 the
appellant is sentenced to life imprisonment;
2. Counts 2 ,3, 4, 5, and
7 are taken together for the purposes of sentencing and  the
appellant is sentenced on these counts
to 10 years
imprisonment;
3. All sentences will be
calculated to run from 03 June 2011.
______________________________________
FISHER
J
HIGH
COURT JUDGE
GAUTENG LOCAL DIVISION,
JOHANNESBURG
I
agree,
______________________________________
MUNZHELELE AJ
HIGH
COURT ACTING JUDGE
GAUTENG DIVISION, PRETORIA
DATE
OF HEARING:
07
December 2017
DATE
OF JUDGMENT AND ORDER:
14
December 2017
LEGAL
REPRESENTATIVES:
FOR
THE APPELLANT
H.
L ALBERTS (Attorney) with High Court Appearance, Instructed by
Pretoria Justice Centre.
FOR
THE RESPONDENT:
Adv
J Cronje Instructed by the DPP
[1]
[2017]
ZASCA 82
(2 June 2017)
[2]
Section 51
(1) provides: ‘Notwithstanding any other law, but subject to
subsections (3) and (6), a regional court or a High
Court shall
sentence a person it has convicted of an offence referred to in Part
I of Schedule 2 to imprisonment for life.’
Those
subsections (s 51(3)
(a)
and
(6)) in turn provide for departures from the prescribed sentence if
a court is satisfied that substantial and compelling circumstances

exist which justify the imposition of a lesser sentence than the
sentence prescribed and where the accused was under the age
of 16
years at the time of the commission of an offence (in terms of the
old s 51(6)).
[3]
In terms of
s 5(1), ‘a person ('A') who unlawfully and intentionally
sexually violates a complainant ('B'), without the
consent of B, is
guilty of the offence of sexual assault.’
[4]
At para [3]
[5]
See
S v
Marx
1989 (1) SA 222 (A)
at 226C;
S v
Immelman
1978 (3) SA 726 (A)
at 730H
[6]
2001 (1) SACR 469 (SCA)
[7]
2009 (1) SACR 552 (SCA)
[8]
id at para
16
[9]
2001 (1) SACR 594 (CC)  at para 38
[10]
2010 (2) SACR 589 (ECG) at para 5
[11]
S v
Zinn
1969(2)
SA 537 (A) at 540 G;
[12]
See
S
v
SMM
2013 (2) SACR 292 (SCA)
at para 27;
S v Van
der Westhuizen
1995 (1) SACR 601 (A)
at 605
;
DPP,
North Gauteng v Thabethe
:2011 (2) SACR 567 (SCA)
at para 22.
[13]
1
996 (1) SACR 419 (A)
at 423.
[14]
S v Mthetwa
2015 (1) SACR 302 (GP) at para 22 ;
S
v Mate
2000 (1) SACR 552 (T)
[15]
Section 39(2)(
a
)(i)
of the
Correctional Services Act 111 of 1998
.