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[2013] ZASCA 56
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Mudau v S (764/12) [2013] ZASCA 56; 2013 (2) SACR 292 (SCA) (9 May 2013)
Reportable
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 764/12
In the matter between
SAMSON MAWELA MUDAU
...............................................................
APPELLANT
and
THE STATE
.......................................................................................
RESPONDENT
Neutral citation:
Mudau v The State
(764/12)
[2012] ZASCA 56
(9 May 2013)
Coram
: MTHIYANE DP, CACHALIA, MAJIEDT JJA,
ERASMUS and SALDULKER AJJA
Heard: 5 MARCH 2013
Delivered: 9 MAY 2013
Summary: Criminal law – rape – assessment
of evidence in totality – adequacy of evidence to sustain
conviction
in circumstances where medical evidence inconclusive –
sentence – prescribed minimum sentence in terms of
Criminal Law
Amendment Act 105 of 1997
read with
Part 1
of Schedule 2 –
whether substantial and compelling circumstances exist – life
sentence – 13 year old complainant
– important that each
case be considered on its own merits.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Limpopo High Court, Thohoyandou
(Booi AJ, sitting as court of first instance):
1. The appeal against conviction is dismissed.
2. The appeal against the sentence of life imprisonment
is upheld and the sentence of the court below is set aside and
replaced
with the following:
‘
The accused is sentenced to 15
years’ imprisonment.’
3. The sentence is antedated to 14
March 2011.
______________________________________________________________
JUDGMENT
______________________________________________________________
MAJIEDT JA (MTHIYANE DP, CACHALIA JA, ERASMUS and
SALDULKER AJJA concurring):
[1] The appellant, Mr Samson Mawela Mudau, was convicted
in the Limpopo High Court, Thohoyandou, of the rape of a thirteen
year
old girl and sentenced to life imprisonment. He appeals against
both his conviction and sentence with leave of the court below.
[2] The facts underlying the conviction are briefly as
follows. The appellant is the child’s uncle. He had been
requested
by the child’s mother to, in her absence, assist the
child with an application for admission to a high school. At the
time,
the child was residing with her grandmother. On the day of the
incident the appellant left a message with the grandmother for the
child to go to his house, which was close by, to assist her to
complete forms for admission to the school.
[3] The child testified that the appellant was alone
when she arrived at his home. He asked her whether she was sexually
active.
She denied that she was, and added that her grandmother would
confirm this. He then asked her to show him her panties. She obliged
and he forcefully inserted two of his middle fingers into her vagina.
At that point there were voices outside the house. He instructed
her
to be seated on the bed while he went to investigate. She testified
that she was afraid to ask for help because she had heard
him say
that he had a firearm for which he needed to get a place for
safe-keeping.
[4] He returned moments later and instructed her to
undress and also to lie down sideways on the bed. Again, she complied
with this
instruction. He then got onto the bed in a sideways
position, unzipped his trousers and forcefully inserted his penis
into her
vagina. She testified that it was painful, and estimated
that it lasted for about five minutes. When she started crying, the
appellant
withdrew and told her to get dressed so that they could go
and make a telephone call to her mother from a nearby public
telephone.
As they were leaving his house, the appellant sent the
complainant back to close the security gate, because the appellant
feared
that his firearm inside the house would be stolen. They were
unable to reach her mother on the telephone and the appellant gave
a
five rand coin to the child, which she believed was to buy her
silence about the rape.
[5] The child returned to her grandmother’s house
and started crying and, after being questioned, she related to her
grandmother
what had happened. The incident was reported to the
police, who arrested the appellant that same evening. The child was
medically
examined later. When they returned home that evening she
noticed that there was blood on her panty. She showed this to her
grandmother.
[6] The medical examination by Dr Clement Ngobeni,
recorded as usual on the J88 form, revealed that there were no
abrasions, that
the child’s vagina only admitted the tip of one
finger and that the hymen had a crescentic shape which, together with
the
admission of one fingertip into the vagina, suggested that some
penetration may have occurred. His ultimate conclusion, however,
as
appeared from the J88 form, was that there was ‘no obvious
evidence suggestive of sexual assault, but cannot exclude it
–
specimen results still pending’.
[7] The ‘specimen results’ alluded to by Dr
Ngobeni on the J88 form, were the blood samples of the appellant as
well
as a sexual assault evidence kit containing various specimens
taken from the appellant. These, together with the child’s
panties which was sealed separately in a brown paper bag, were
forensically analysed by Ms Mbedzi, an assistant forensic analyst
at
the police’s forensic laboratory in Pretoria. She detected
possible traces of semen on the panties, cut out that particular
portion of the panties and forwarded it for DNA testing to the
relevant department in the forensic laboratory. Ms Maharaj, also
employed as an assistant forensic analyst at that laboratory,
performed an analysis of the DNA results of both the semen on the
piece of the panties and the appellant’s blood sample and
concluded that there was a match in the DNA results. The outcome
was
therefore that the forensic evidence showed that the appellant’s
semen was found on the child’s panties.
[8] In his testimony the appellant denied that he had
raped the child. He testified that they had merely gone through the
school
application forms. When he told her that he would prefer not
to get involved further with her admission application because she
was ‘busy with boys’ she denied it. They then attempted
to call her mother, but were unable to reach her. He gave her
R5 to
call her mother later.
[9] The primary thrust of the appellant’s attack
against the conviction before us concerned the question whether the
State
had proved beyond reasonable doubt that there had been
penetration to constitute the offence of rape. In this regard the
appellant’s
counsel laid heavy emphasis on Dr Ngobeni’s
inconclusive findings. These contentions are devoid of merit. The
trial court’s
findings that the child and her grandmother were
honest, credible and trustworthy witnesses are in my view
unassailable. But one
must of course be mindful of the fact that the
child was a single witness in respect of the rape incident itself and
that she is
a child.
Section 208
of the
Criminal Procedure Act, 51 of
1977
, provides that a single witness’ evidence is adequate to
sustain a conviction, provided that it is satisfactory in all
material
respects. It is further trite that the evidence of children
must be treated with circumspection. It would therefore not have been
safe to convict on her evidence alone.
[10] But there was sufficient corroboration for the
child’s testimony: first the undisputed DNA evidence that the
appellant’s
semen was found on the complainant’s panties;
and secondly the appellant’s utter inability to explain this.
When asked
in evidence in chief for an explanation, the appellant was
unable to do so. Instead he gave a rather peculiar response: ‘You
can ask me all the questions, but this one no I will not be able to
answer’.
[11] In my view, the State had discharged the onus of
proving that the appellant had raped the child. When the evidence is
assessed
in its totality, as a court is obliged to do,
1
the conclusion is compelling that, even absent any
conclusive medical evidence which must be regarded as being neutral,
the child’s
evidence, supported by the DNA evidence and by the
appellant’s inability to furnish any explanation whatsoever for
the presence
of his semen on the complainant’s panties,
constitute adequate proof of the rape. The trial court therefore
correctly convicted
the appellant.
[12] I turn now to the vexed question of sentence which
is always an extremely difficult exercise. Sentencing in cases where
a young
child has been raped by a family member is no exception and
is bound to be contentious.
[13] The court below found no substantial and compelling
circumstances to deviate from the prescribed minimum sentence of life
imprisonment
for the rape of the child and imposed that sentence on
the appellant.
2
For the reasons that follow I am of the view that the
court below erred in this regard. I deem it necessary to provide a
detailed
exposition of this court’s recent judgments in such
cases. I hasten to add that it is trite that each case must be
decided
on its own merits. It is also self-evident that sentence must
always be individualised, for punishment must always fit the crime,
the criminal and the circumstances of the case. It is equally
important to remind ourselves that sentencing should always be
considered
and passed dispassionately, objectively and upon a careful
consideration of all relevant factors. Public sentiment cannot be
ignored,
but it can never be permitted to displace the careful
judgment and fine balancing that is involved at arriving at an
appropriate
sentence. Courts must therefore always strive to arrive
at a sentence which is just and fair to both the victim and the
perpetrator,
has regard to the nature of the crime and takes account
of the interests of society. Sentencing involves a very high degree
of
responsibility which should be carried out with equanimity, as
Corbett JA put it in
S v Rabie
:
‘
[a]
judicial officer should not approach punishment in a spirit of anger,
because, being human, that will make it difficult for
him to achieve
that delicate balance between the crime, the criminal and the
interest of society which his task and the objects
of punishment
demand of him. Nor should he strive after severity; nor, on the other
hand, surrender himself 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.’
3
[14] Our country is plainly facing a crisis of epidemic
proportions in respect of rape, particularly of young children. The
rape
statistics induce a sense of shock and disbelief. The
concomitant violence in many rape incidents engenders resentment,
anger and
outrage. Government has introduced various programmes to
stem the tide, but the sexual abuse of particularly women and
children
continue unabated. In
S v RO
,
I referred to this extremely worrying social malaise, to the latest
statistics at that time in respect of the sexual abuse of
children
and also to the disturbingly increasing phenomenon of sexual abuse
within a family context.
4
If anything, the picture looks even gloomier now, three
years down the line. The public is rightly outraged by this rampant
scourge.
There is consequently increasing pressure on our courts to
impose harsher sentences primarily, as far as the public is
concerned,
to exact retribution and to deter further criminal
conduct. It is trite that retribution is but one of the objectives of
sentencing.
It is also trite that in certain cases retribution will
play a more prominent role than the other sentencing objectives. But
one
cannot only sentence to satisfy public demand for revenge –
the other sentencing objectives, including rehabilitation can
never
be discarded altogether, in order to attain a balanced, effective
sentence. The much quoted
Zinn
5
dictum remains the leading authority on the topic.
Rumpff JA’s well-known reference to the triad of factors
warranting consideration
in sentencing, namely the offender, the
crime and the interests of society, epitomises the very essence of a
balanced, effective
sentence which meets all the sentencing
objectives. More than 40 years ago, Schreiner JA had the following to
say about the balance
which has to be struck:
‘
While
the deterrent effect of punishment has remained as important as ever,
it is, I think, correct to say that the retributive
aspect has tended
to yield ground to the aspects of prevention and correction. That is
no doubt a good thing. But the element of
retribution, historically
important, is by no means absent from the modern approach. It is not
wrong that the natural indignation
of interested persons and of the
community at large should receive some recognition in the sentences
that Courts impose, and it
is not irrelevant to bear in mind that, if
sentences for serious crimes are too lenient, the administration of
justice may fall
into disrepute and injured persons may incline to
take the law into their own hands.’
6
[15] Crime has undeniably escalated alarmingly since
this dictum, but while retribution remains a sentencing objective,
this does
not mean that disproportionate sentences may be imposed on
offenders. As Prof S S Terblanche has correctly pointed out:
‘
. . .
true retribution is effected only by the imposition of an appropriate
sentence, by a sentence which is in proportion to what
is deserved by
the offender.’
7
[16] The conundrum which minimum sentencing legislation
presents (and, one might add, coupled to the present rampant scourge
of
rape, particularly of young girls) is vividly illustrated by the
stark dichotomy of views expressed in the majority and minority
judgments of this court in
S v Nkomo
.
8
It is not necessary to regurgitate the facts. Suffice to
state that the case has elicited widespread comment and criticism
from
both lawyers and non-lawyers. In an insightful analysis, the
authors of the Commentary on the
Criminal Procedure Act conclude
,
correctly in my view, that the vast difference in the two approaches
and ultimate sentences in
Nkomo
can
be explained with reference to ‘the problems created by minimum
sentence legislation, ie, legislative interference in
the discretion
of courts to determine an appropriate sentence.’
9
[17] It is necessary to reiterate a few self-evident
realities. First, rape is undeniably a degrading, humiliating and
brutal invasion
of a person’s most intimate, private space.
10
The
very act itself, even absent any accompanying violent assault
inflicted by the perpetrator, is a violent and traumatic infringement
of a person’s fundamental right to be free from all forms of
violence and not to be treated in a cruel, inhumane or degrading
way.
11
In
S v Vilakazi,
12
Nugent JA referred to the study done by Rachel Jewkes
and Naeema Abrahams on the epidemiology of rape
13
which concluded on the available evidence that ‘women’s
right to give or withhold consent to sexual intercourse is one
of the
most commonly violated of all, human rights in South Africa’.
[18] The second self-evident truth (albeit somewhat
contentious) is that there are categories of severity of rape. This
observation
does not in any way whatsoever detract from the important
remarks in the preceding paragraph. This court held in
S
v Abrahams
that ‘some rapes are worse
than others, and the life sentence ordained by the Legislature should
be reserved for cases devoid
of substantial factors compelling the
conclusion that such a sentence is inappropriate and unjust’.
14
The advent of minimum sentence legislation has not
changed the centrality of proportionality in sentencing. In
Vilakazi
Nugent JA cautioned against the danger of heaping
‘excessive punishment on the relatively few who are convicted
in retribution
for the crimes of those who escape or in the
despairing hope of that it will arrest the scourge’.
15
He also pointed to the vast disparity between the
ordinary minimum sentence for rape (10 years imprisonment) and the
one statutorily
prescribed for rape of a girl under the age of 16
years (life imprisonment) and the startling incongruities which may
result.
16
The judgment also sets out the dramatic effect that the
minimum sentencing legislation has had in sentencing, most
importantly that
statistics show that inmates serving sentences of
life imprisonment has increased more than ninefold from 1998 to
2008.
17
And he reiterated that even in the context of minimum
sentencing legislation the importance of assessing each case on its
own peculiar
facts and circumstances and the need for proportionality
must never be overlooked. Nugent JA expressed it as follows:
‘
It is
clear from the terms in which the (determinative) test was framed in
Malgas
and
endorsed in
Dodo
that
it is incumbent upon a court in every case, before it imposes a
prescribed sentence, to assess, upon a consideration of all
the
circumstances of the particular case, whether the prescribed sentence
is indeed proportionate to the particular offence’
18
.
[19] Life imprisonment is the most severe sentence which
a court can impose. It endures for the length of the natural life of
the
offender,
19
although release is nonetheless provided for in the
Correctional Services Act 111 of 1998
. Whether it is an appropriate
sentence, particularly in respect of its proportionality to the
particular circumstances of a case,
requires careful consideration. A
minimum sentence prescribed by law which, in the circumstances of a
particular case, would be
unjustly disproportionate to the offence,
the offender and the interests of society, would justify the
imposition of a lesser sentence
than the one prescribed by law.
20
As I will presently show, the instant case falls into
this category. This is evident from the approach adopted by this
court to
sentencing in cases of this kind.
[20] In
S v Abrahams
21
a sentence of 7 years’ imprisonment imposed on a
father for raping his 14 year old daughter was increased on appeal to
a sentence
of 12 years. Cameron JA, writing for a unanimous court,
emphasized the reprehensibility of rape committed within a family
context.
As stated above, the learned Judge also pointed out that
‘some rapes are worse than others’ (see para 17 above)
and,
with reference to the dictum of Ackerman J in
S
v Dodo
, supra at para 38, emphasized the need
for proportionality.
[21] In
Bailey v S,
22
an appeal against a sentence of life imprisonment
imposed on a father for the rape of his 12 year old daughter was
dismissed. In
distinguishing that case from others such as, inter
alia
Abrahams
and
Nkomo
, referred to
above, Bosielo JA (Brand, Heher, Malan and Pillay JJA concurring)
laid heavy emphasis on the drastic effect which
the rape has had on
the victim, as evidenced by the victim impact report, which had been
handed in by consent. That report enumerated
the following severe
sequelae of the rape on the complainant: (a) anxiety, fear and
sleeping disorder; (b) misplaced feelings of
guilt and shame; (c)
mood swings; (d) a loss of trust in mankind and a great sense of
anger and hostility towards her father. She
also had to leave school
prematurely when she discovered that she was pregnant and suffered
two miscarriages. Bosielo JA emphasized
the need to decide on the
imposition of an appropriate sentence based on the particular facts
of each case. The primary difficulty
in the case before us is that no
victim impact report was placed before the trial court, an aspect to
which I shall revert shortly
[22]
Ndou v S
23
concerned the rape of a 16 year old girl by her
stepfather. The sentence of life imprisonment was set aside by this
court, which
substituted in its stead a sentence of 15 years’
imprisonment. In its judgment this court (per Shongwe JA) referred to
a
misdirection on the part of the trial court which. . .’[created
the impression] that the minimum sentence of life imprisonment
had to
be imposed regardless of the circumstances’.
24
The learned Judge also made mention of the fact that no
evidence was led on the effect the rape had on the victim, but
accepted
that it must have been very traumatic.
25
The court found that a sentence of life imprisonment
would be disproportionate and imposed 15 years’ imprisonment.
[23] Lastly there is the judgment of
Kwanape
v S.
26
I must immediately point out that the rape in that
matter had not been perpetrated in a family setting. This court (per
Petse JA,
Nugent JA and Erasmus AJA) dismissed an appeal against a
sentence of life imprisonment imposed on a 24 year old first offender
who had raped a 12 year old girl. One of the numerous aggravating
factors in that case was the fact that the appellant had abducted
the
complainant while she was in the company of her friends and
effectively held her hostage for an entire night. In this matter
too,
a victim impact report was handed in by consent, from which it
appears that the rape has had a devastating impact on the
complainant. She was forced to leave school, compelling her mother to
give up her employment in order to render emotional support
to the
complainant. The latter had become a recluse so as to avoid being
ridiculed by her peers.
[24] The appellant in the present matter testified in
mitigation of sentence. He was 47 years old at the time of
sentencing, a taxi
driver by occupation, earning R1 000 per
week. His wife was also employed, earning R1 200 per month. They
have four children,
all of them still dependent on their parents for
financial support. The appellant has one previous conviction, dated
1998, for
assault with intent to do grievous bodily harm, for which
he had been sentenced to a R500 fine or 3 months imprisonment, which
may be disregarded for present purposes. It can therefore be accepted
that he has no propensity to commit crime, which increases
his
chances for rehabilitation.
[25] It must also be accepted that this was not the most
severe form of rape and that the appellant desisted when he realized
that
the child was crying. There is also no evidence that the child
suffered any ongoing trauma, over and above the trauma that she would
inevitably have experienced as a result of what had happened. In this
regard I must mention that it is troubling that the State
seems to
have made no attempt to place such evidence before the trial court,
eg by way of a victim impact report, despite the fact
that this court
has emphasized its importance.
27
[26] In respect of the severity of the rape, referred to
in the preceding paragraph, it is plain from the medical report that
the
doctor did not find any serious physical injuries (see para 6
above). And there was no further violence in addition to the rape.
Similarly in
S v Nkawu
28
the complainant had not suffered any serious injuries as
a consequence of being raped. In considering whether substantial and
compelling
circumstances exist justifying departure from the
prescribed sentence, Plasket J was called upon to consider the
provisions contained
in
s 51
(3)
(aA)
(ii)
of the
Criminal Law Amendment Act, 105 of 1997
, as far as the absence
of serious physical injuries to the complainant was concerned. That
subsection provides that when a court
sentences for rape ‘an
apparent lack of physical injury to the complainant’ shall not
be regarded as a substantial
and compelling circumstance. Plasket J,
expressed the view, correctly as I see the matter, that a literal
interpretation of that
provision would render it unconstitutional,
since it would require judges to ignore factors relevant to sentence
in crimes of rape
which could lead to the imposition of unjust
sentences. I agree with the learned Judge that ‘to the extent
that the provision
restricts the discretion to deviate from a
prescribed sentence in order to ensure a proportional and just
sentence it would infringe
the fair trial right of accused persons
against whom the provision was applied’
29
.
He correctly in my view concluded that the proper interpretation of
the provision does not preclude a court sentencing for rape
to take
into consideration the fact that a rape victim has not suffered
serious or permanent physical injuries, along with other
relevant
factors, to arrive at a just and proportionate sentence. To this one
must add that it is settled law that such factors
need to be
considered cumulatively, and not individually.
[27] As against these mitigating factors it must also be
considered that the appellant abused his position of trust. Instead
of
helping the child with her application forms for school he used
the opportunity to violate her and showed no remorse by denying
in
court that the incident had taken place. Instead of taking
responsibility for what he had done, he sought to make the child
a
liar. In effect, he victimised her again.
[28] Having weighed the mitigating factors against the
aggravating ones, the imposition of the statutorily prescribed
minimum sentence
by the high court was in my view grossly
disproportionate to the offence. This court is therefore obliged to
set it aside and impose
a fresh sentence. The offence is,
nonetheless, deserving of severe punishment so as to convey the
gravity of the offence and society’s
justified abhorrence
thereof. I am of the view that a sentence of 15 years’
imprisonment would meet the objectives of sentencing
and would fit
the crime, the criminal and the needs of society. The appellant has
been serving his sentence since the date of sentencing,
namely 14
March 2011 and the sentence should consequently be antedated
accordingly.
[29] In the result the following order is made:
The appeal against conviction is dismissed.
The appeal against the sentence of life imprisonment is
upheld and the sentence of the court below is set aside and replaced
with
the following:
‘
The accused is sentenced to 15
years’ imprisonment.’
The sentence is antedated to 14 March 2011.
________________________
S A MAJIEDT
JUDGE OF APPEAL
APPEARANCES
For Appellant: L M Manzini
Instructed by:
Polokwane Justice Centre
Bloemfontein Justice Centre
For Respondent: R J Makhera
Instructed by:
Director of Public Prosecutions, Limpopo
Director of Public Prosecutions, Bloemfontein
1
S
v Van Aswegen
2001 (2) SACR 97
(SCA)
para 8.
2
Section
51
(1) of the
Criminal Law Amendment Act, 105 of 1997
, read with
s
51(3)
and
Part 1
of Schedule 2 to that Act.
3
S
v Rabie
1975 (4) SA 855
(A) at 866A-C.
4
S
v RO
2010 (2) SACR 248
(SCA) para 1.
5
S
v Zinn
1969 (2) SA 537
(A) at 540G;
see also:
Director of Public
Prosecutions, KwaZulu-Natal v P
2006
(3) SA 515
(SCA) para 13;
S v M
(Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
(CC) paras 36, 40 and 116;
S
v Samuels
2011 (1) SACR 9
(SCA) para
9.
6
R
v Karg
1961 (1) SA 231
(A) at 236A-B.
Cf
S v Mafu
1992
(2) SACR 494
(A) at 497b-d.
7
S
S Terblanche,
A Guide to Sentencing in
South Africa
, 2ed, 2007 para 3.3 at p
146.
8
S
v Nkomo
2007 (2) SACR 198
(SCA).
9
Du
Toit et al,
Commentary on the
Criminal
Procedure Act
2ed (1997
) at 28-18D.
10
The
oft quoted dictum of this court in
S v
Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at
344J-345A is apposite.
11
Section
12
(1)(
c
)
and (
e
)
of the Constitution.
12
S
v Vilakazi
2012 (6) SA 353
(SCA);
2009
(1) SACR 552
(SCA) para 2.
13
Rachel
Jewkes and Naeema Abrahams ‘The Epidemiology of Rape and
Sexual Coercion in South Africa: An Overview, Social Science
and
Medicine Journal 55 (2002) 1231–1244.
14
S
v Abrahams
2002 (1) SACR 116
(SCA)
para 29.
15
S
v Vilakazi,
supra, para 3.
16
P
ara
13.
17
P
ara
51.
18
Para
15.
19
S
v Mdau
[1990] ZASCA 126
;
1991 (1) SA 169
(A) at 176G;
S
v Bull
2001 (2) SACR 681
(SCA) para
21.
20
S
v Malgas
2001 (2) SA 1222
(SCA),
2001
(1) SACR 469
(SCA)
[2001] 3 All SA 220
(SCA) para 25.
S
v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC),
2001
(3) SA 382
(CC),
2001 (5) BCLR 423
(CC), para 40.
21
S
v Abrahams
, supra.
22
Bailey
v S
(454/11)
[2012] ZASCA 154
(1
October 2012).
23
Ndou
v S
(93/12)
[2012] ZASCA 148
(28
September 2012).
24
Para
11.
25
Para
12.
26
Kwanape
v S
(422/12)
[2012] ZASCA 168
(26
November 2012).
27
S
v Vilakazi,
supra, paras 56 and 57.
28
S
v Nkawu
2009 (2) SACR 407
(ECG).
29
Para
15.