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[2011] ZAGPPHC 69
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Fourie v S (A383/2008) [2011] ZAGPPHC 69 (2 February 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO.: A383/2008
DATE:02/02/2011
In
the matter between:
LENNERT
FOURIE
.................................................................................................
APPELLANT
And
THE
STATE
........................................................................................................
RESPONDENT
JUDGMENT
WEBSTER
J
1.
The appellant was convicted by Ismail AJ, sitting with two assessors,
of the murder of his live-in lover committed on or about
9th April,
2005, in Pretoria. He was sentenced to 15 years imprisonment. He
appeals against both the conviction and sentence, leave
to do so
having been granted by the court a quo.
2.
The appeal is based on factual findings made by the trial court. A
court of appeal is only entitled to interfere with a trial
court's
findings on fact if it is satisfied that the trial court misdirected
itself on the facts or the credibility of witnesses
(R v Dlumayo
1948(2) SA 677 (A))
3.
There was no direct evidence led at the trial. The state sought
various inferences to be made from such evidence. It is now trite
that in the case of circumstantial evidence the circumstantial
evidence must pass muster the "...two cardinal rules of logic"
as laid down in R v Blom
1939 AD 188
, at 202-3 by Watermeyer JA, viz,
that "(1) the inference sought to be drawn must be consistent
with all the proved facts.
If it is not, then the inference cannot
be drawn; (2) the proved facts should be such that they exclude every
reasonable inference
from them save the one sought to be drawn if
they do not exclude other reasonable inferences, then there must be a
doubt whether
the inference sought to the drawn is correct".
4.
The basis of the appellant's defence as set out in his amplification
of his plea of not guilty, in terms of
section 115
of the
Criminal
Procedure Act 51 of 1977
was that there had been misunderstandings
between himself and the deceased on the 7th and 10th April, 2005,
during which he had
struck her with an open hand but denied that the
deceased could have sustained any injuries that could have caused her
death. In
the cause of his evidence the appellant testified that on
the afternoon of the 9th April, 2005, the deceased had left the room
they occupied and had allegedly been attached by an unknown male in
the drive way on the premises: she had apparently suffered a
cut
above her eye. Later during the course of that weekend she had fallen
twice and could have sustained the fatal injuries during
such falls.
5.
The post-mortem examination on the body of the deceased was performed
by Dr Blumenthal, a pathologist. The deceased's body was
also
photographed. The chief findings by Dr. Blumenthal are that the cause
of death was "sub-acute right sided subdural haematoma
due to
blunt force trauma", suggestive of the use of an instrument. He
dismissed any suggestion that the fatal injury could
have been caused
accidentally.
6.
The trial court found that it could not find "...with any degree
of certainty that the evidence presented by the state did
not prove
the accused was responsible for those injuries which caused the
deceased's death". It convicted him, however, on
the basis that
there had been a duty and obligation on the appellant to take the
deceased to hospital for medical attention and
that his failure to do
so displayed a total disregard on his part whether the injuries
inflicted by him or a third party could
have been fatal. He
reconciled himself with the possible consequences of his acts as well
as the acts of a third party and for
that reason we are of the view
that the State proved its case beyond reasonable doubt.
7.
It was submitted on behalf of the appellant, on the merits, that the
finding of an attack by an unknown person on the deceased
was
correct. It was submitted, however, that the court erred in finding
that the appellant was under a legal obligation to have
taken the
deceased to hospital. It was submitted further that the trial court
had erred in finding that the appellant ought to
have realized that
the deceased needed medical attention and then convicting him of
murder, which required subjective foresight.
8.
It was submitted further that the charge sheet had been materially
defective and that the appellant had been prejudiced by the
lack of
'..an averment that there was a legal duty on the appellant to have
taken the deceased to hospital".
9.
With regard to the sentence it was submitted that the failure to
apprise the appellant of the provisions of "minimum sentencing
legislation at the onset of the trial" had rendered the trial in
that respect substantially unfair and constituted a substantial
and
compelling reason why the prescribed sentence ought not to have been
imposed".
10.
It was submitted by Miss Mnguni, for the State, that it was her
respectful view that the trial court had misdirected itself
in
accepting that the deceased had been attacked by an unknown assailant
who may have inflicted the fatal injuries. It was submitted
that the
trial court should have found that the injuries that resulted in the
deceased's death were inflicted by the appellant
and further that the
appellant foresaw that the injuries would cause her death and
reconciled himself with that consequence and
did not take the
deceased for medical intervention and treatment.
11.
With regard to the sentence Miss Mnguni submitted that the sentence
is an appropriate one and should be confirmed. In the light
of the
mutual challenge of the trial court's findings on fact it is
necessary to test the submissions made by the respective counsel
and,
if necessary, to re-visit the evidence.
12.
The evidence is that the appellant started assaulting the deceased
whilst they were on their way to their home after the appellant's
dog
had escaped and had been run over and died when the bakkie the couple
were travelling in stopped at a robot and the deceased
opened the
door to fetch the appellant's cigarettes from the rear of the bakkie.
The assault on the deceased in this regard is
set out in the
appellant's statement that was handed into court and accepted in
evidence. According to the statement (Exhibit "E"),
the
appellant admitted that:
(I)
He slapped the deceased twice in the bakkie, in exasperation;
(ii)
When they reached home he again gave her"... `n paar klappe"
after she had poured herself some wine;
(iii)
After she had gone out of the house to obtain the odometer reading on
the bakkie he heard her screaming outside. He ran out
and found her
lying on the driveway. He observed a small cut above her left eye. He
tried to lift her up. She would not co-operate
to enable him to help
lift her up. He then "...toe gee ek haar weer 'n klap. Toe se sy
sy wil fokol van my he - ek moet haar
uitlos. Toe klap ek haar weer."
(iv)
Whilst he was dragging her from where he had picked her up in the
driveway she fell because she would not co-operate as he
was trying
to open the gate. He took her into the house and placed here in the
bed. She tried to get up from the bed but fell over
a stool. He told
her to listen to him. Her response was "Jy het fokol vir my te
se. Toe haal my koppie uit. Toe gee ek haar
n paarklappe."
(v)
Later he left to buy cigarettes. On the way to the cafe he realized
he did not have money on him. He returned home. The deceased
came out
of the kitchen with short
pants with the front thereof open and
her panty visible. He swore at her. The deceased's response was she
could walk as she liked
as no one could see it. He slapped her. She
made no effort to close the front of her shorts. He slapped her
again.
(vi)
The following day, the Sunday, on their return from the cafe the
deceased repeated that she could walk around dressed as she
liked as
no one would see her. He slapped her again. In his evidence when
testifying he added that he struck her with his right
hand between
her legs. On the Monday he offered to take her to hospital. Her
response was that she was feeling "alright".
He insisted
that he was taking her to the doctor. She swore at him. He then
slapped her hard. He also slapped her with the left
hand on her face.
On Tuesday morning he discovered that she was dead.
13.
Three witnesses testified on behalf of the state, viz, LINA MAHLANGU,
sergeant Diale and Hendrina Jansen van Rensburg, the deceased's
daughter. Mahlangu's evidence is that she worked on the premises
adjacent to where the deceased lived. On the day in question she
heard a long painful scream for help emanating from the premises
where the deceased lived. She saw the deceased lying down on the
driveway. She also saw the appellant standing closer to the garage
gates. She makes no mention in her evidence of the appellant
assisting the deceased and neither was this put to her.
14.
Sergeant Diale testified that on 9 April, 2005, he was on patrol duty
when he received a complaint of assault at 757 Meyer Street
and
within a minute of this call he received a complaint of housebreaking
in progress at the same address. He proceeded there.
He found the
appellant and another old man in the house. The appellant made a
report to him that somebody had hurt his wife. They
went into a room
and found the deceased asleep. They then went outside to the
gardener's room as the appellant suspected that it
was the gardener
who had assaulted his wife. They went outside and found the
gardener's room locked. They returned to the house
and found the
deceased awake. The deceased's left eye was swollen and had a little
cut. He wanted to arrange for the deceased to
be removed to hospital
but the appellant informed him that he had an army medical aid kit
and would "...try to neutralize"
her and that he could take
her to hospital later. On Diale's request the appellant took Diale
outside and pointed out a spot with
fresh blood stains on the ground.
He also asked the appellant about the case of housebreaking and the
appellant said, "...
he will open a case maybe after he comes
back from the hospital... [after]... taking his wife there".
Before they left he
again offered to take the deceased to hospital
but the appellant was adamant he would take her and proceeded to a
car and started
it. He testified that neither the assault nor the
housebreaking case was ever opened at the police station.
15.
Sergeant Diale confirmed under cross-examination that when they went
back into the bedroom the deceased had been awake and
she told them
that she was attacked outside the house by a black male who could
still be on the premises.
16.
The evidence of Hendrina Jansen van Rensburg is that she was
telephoned by the deceased, her mother, on 10 April, 2005. The
deceased informed the witness that she had been assaulted the
previous night. The excerpt of the evidence in this regard reads
as
follows:
"U
se u ma het u geskakei? — Ja, sy het my geskakel, Ja? —
Toe het sy vir my gese sy is die vorige aand, die Saterdagaand,
aangerand. Ja? — Ek het vir haar gevra deur wie is sy
aangerand. Sy het my nie geantwoord nie, toe vra ek haar weer was dit
Lenard Fourie gewees.
Ja?
— Toe se sy vir... (voitooid). Ekskuus, ek het vir haar gevra
was dit Lenard Fourie gewees, toe het sy begin huif toe
se sy vir my
ja sy wens sy kan doodgaan.
Sy
het begin huil en toe se sy ...(tussenbei) — Sy wens sy kan
doodgaan.
Sy
wens sy kan doodgaan. Ja? — Ek het haar gevra was dit Lenard
gewees en staan hy daar naby. Sy het net in n huiiende stem
gese ja
MS
MNGUNI: Yes, proceed? -- Ek het haar gevra of kan ek haar hospitaal
toe neem. Sy het gese nee sy gaan die Maandagoggend hospitaai
toe. Ek
het haar gevra sy moet my laat weet hoe dit gegaan het en wat se
huiie." (Page 37 line 15 to page 38 line 5 of the
record)
17.
She testified further that the next day the following telephone her,
between 12h00 and 13h00. The evidence reads as follows:
"And
then thereafter did you have any conversation with your mother after
the 11th? — No". (Page 38 lines 17 and
18)
Cross
examined on the ambiguity in the deceased's response during the
telephone conversation of the 10th, the evidence reads as
follows:
So
sy het eintiik vir u geskakel en vir verduideiik dat sy aangerand is?
— Ja
Het
sy ooit vir u vertel gedurende die gesprek dat sy deur 'n swart man
aangerand was? — Nee, glad nie.
En
as gevolg van hierdie vraag wat u vir haar gevra het, ek
verstaan
dit is dubbelsinning... (tussenbei) — Ja.
Ek
weet nie wat die antwoord "ja" in vergelyking is nie, is
die antwoord "ja" dat die beskuidigde langs haar
gestaan
het of is die antwoord "ja"dit is die beskuidigde wat haar
aangerand het, maar u vraag aan haar was duidelik
gewees? — Dit
was duideiik.
Is
dit Lennard? — Ja.
Dit
was u vraag gewees? — Ja.
En
toe antwoord sy ...(tussenbei) — Nee, die... (tussenbei)
Daar
was a stilte gewees? — Die eerste keer wat ek haar gevra het
het sy net vir my gese sy wens sy kan doodgaan, Ja, dit
versaan ek,
maar ek praat... (tussenbei) — En die tweede keer het sy net
gese "ja''.
Ek
praat nou spesifiek omtrent wat u vir u moeder gevra het, wat het u
vir u moeder gevra? — Ek het vir haar gevra is dit
Lennard wat
haar aangerand het en staan hy iangs haar en sy het net daarop ja
geantwoord. Sy het nie gese ja dit is hy of nie dit...(tussenbei)
Maar
daar was nooit to antwoord gewees, nee dit is nie Lennard nie dit is
iemand anders, 'n derde persooon byvoorbeeid nie? —
Nee, giad
nie, glad niks van so to gesprek nie. (Page 40 line 3 to page 41 line
1 of the record)
18.
The evidence of Dr. Blumenthal was that there was extensive bruising
on the thighs, genital area and the abdomen. In his view
such
injuries would have been caused by a continuous application of blunt
force and not two smacks or blows. The photograph shows
a purplish -
black area around the pubic area and the lower abdomen. There were
lacerations and bruising on the upper and lower
eyelids of both eyes,
the lower lip, the neck, forehead, cheeks, the lower back, both hands
and the left temporal area just above
the left ear. It is significant
that according to Dr. Blumenthal the fatal injuries could not have
been inflicted with an instrument.
19.
The appellant testified in his defence essentially as set out in his
statement - exhibit "E". He emphasized that the
deceased
notwithstanding his entreaties to take her to hospital had
steadfastly refused and begged him not to take her to the hospital
from the Saturday until Monday because of her experience in the past
at the hospital when she had almost lost her life.
20.
It is convenient to re-state the well-known test on the onus in a
criminal trial, namely that the onus rests entirely on the
State to
prove the guilt of an accused beyond reasonable doubt - this is now
trite. There is no onus on an accused. If his version
is reasonably
possibly true, he is entitled to his acquittal. That too is now
trite.
21.
In evaluation of the evidence the court must have regard to the
evidence in its entirety, it must not weigh the evidence of
the state
and the defence independently of each other (S v van Der Meyden
1999(1) SACR 447 at 448 (e) to (])):
"
The onus of proof in a criminal case is discharged by the State if
the evidence establishes the guilt of the accused beyond
reasonable
doubt. The corollary Is that he is entitled to be acquitted if it Is
reasonably possible that he might be Innocent (see,
for example, R v
Difford 1937AD 370 at 373 and 383). These are not separate and
Independent tests, but the expression of the same
test when viewed
from opposite perspectives. In order to convict, the evidence must
establish the guilt of the accused beyond reasonable
doubt, which
will be so only If there is at the same time no reasonable
possibility that an Innocent explanation which has been
put forward
might be true. The two are inseparable, each being the logical
corollary of the other.
In
whichever form the test is expressed, It must be satisfied upon a
consideration of all the evidence. A court does not look at
the
evidence implicating the accused in isolation in order to determine
whether there is proof beyond reasonable doubt, and so
too does it
not look at the exculpatory evidence In Isolation in order to
determine whether it is reasonably possible that It might
be true. In
R v Hlongwane
1959 (3) SA 337
(A), after pointing out that an accused
must be acquitted If an alibi might reasonably be true, Holmes AJA
said the following at
340H-341B, which applies equally to any other
defence which might present Itself:
But
it is important to bear in mind that in applying this test, the alibi
does not have to be considered in isolation .... The correct
approach
is to consider the alibi in the light of the totality of the evidence
in the case, and the Court's impressions of the
witnesses."
22.It
is my understanding of the judgment of the court a quo that it
accepted the evidence of all the state witnesses. The only
bit of
evidence that was found to be ambiguous was whether in answering in
the affirmative to the question whether it was the appellant
who had
assaulted the deceased and whether he was present as the deceased was
speaking over the phone. (I shall revert to this
later in the
judgment). The trial court as set out earlier in this judgment was
prepared to and in fact did give the appellant
the benefit of the
doubt with regard to the alleged attack of the deceased in the
driveway. I shall deal with these issues seriatim.
23.
There can be no doubt on a reading of the evidence that the deceased
telephoned her daughter on the Saturday evening. It is
common cause
that the deceased had been assaulted that afternoon. It cannot be
doubted that the daughter would have enquired from
the deceased as to
who her assailant had been -that was a natural and instinctive
question to ask. The fact that the deceased broke
down crying and
saying that she wanted to die instead of stating who the culprit or
culprits who had assaulted her were is significant,
particularly when
regard is had to the cause of the fatal injuries and the equally
serious internal haemorrhaging caused by blunt
force on the
deceased's lower abdomen and her head. If indeed somebody other than
the appellant had assaulted her on these parts
of the body it appears
inherently improbable that when asked if the appellant had assaulted
her the deceased would not have readily
disclosed this to her
daughter but would have broken down and cried.
24.
Secondly, it is strange that not knowing how the deceased had been
injured and with what weapon, if any, the appellant would
not have
been alarmed at the deceased's inability to get up and walk back into
the house, let alone being unable to co-operate
with the appellant
when he tried, to lift her up and take her into the house.
25.
The deceased's leaving the house has strange features about it.
Firstly, the appellant found it necessary to enquire about the
odometer reading on the bakkie he was using. That information was of
no use at that stage. Instead it would have been only necessary
to
provide it to his employer on the Monday. His own reason for
dissuading her from going to do this despite his protestations
is
strange: as he himself said he had told her "...sy moet dit los,
ons kan dit Sondag kry". Various questions arise,
viz.:
(i)
Why did she go outside then; and
(ii)
What had the unknown black male or gardener who allegedly attacked
the deceased been doing in the driveway and why did he
attack her?
26.
The appellant himself found this strange. He says at the bottom of
exhibit "E" at page 226 of the record "Ek
vra vir haar
wat is tout Sy se iemand het haar geslaan en oor die binne-heining
gespring. Mevrou, wat ek nie kon sien gebeur het
nie, want ons het
twee baie groot honde en huiie is aggressief.
27.
To add to the aforegoing mystery when Lena Mahlangu looked into the
premises she saw the appellant already there on the driveway
close to
the deceased. It appears unlikely that having heard a scream of pain
Ms. Mahlangu would not have reacted immediately and
perhaps have seen
or heard footsteps of a person fleeing from the premises next door.
Further, when she saw the appellant in the
driveway he was just
standing there doing nothing: this was never contested.
28.
From the evidence of Diale it is clear that two telephone calls were
made from the premises of the deceased and the appellant.
Their
sequence is significant. The first, as mentioned earlier in this
judgment was of an assault and the second was of a "housebreaking
in progress". That an assault took place on the premises is
common cause: the victim was the deceased. The appellant not only
informed Diale about the assault on his wife but even went on to
state that he suspected the gardener of having been the assailant
hence the visit to the gardener's room. Despite this suspicion the
appellant never found it necessary to lay a complaint with the
police
at any stage, even after the deceased's death. I find that conduct
inexplicably strange more so as the suspected gardener
had allegedly
threatened to kill the appellant's dog some time before this
incident.
29.
The next strange conduct on the part of the appellant in the meeting
with sergeant Diale was his refusal to let Diale telephone
for an
ambulance. Nothing in the appellant's evidence suggests that the
deceased's inability to get up and walk from the driveway
could have
been attributed to any cause save the assault on her. Why then did
the appellant:
(i)
tell Diale he would "... try to neutralise..." the deceased
not
knowing the nature and extent of the injuries sustained in that
assault;
(ii)
decline Diaie's offer to telephone for an ambulance;
(iii)
having convinced or persuaded Diale that he would take the deceased
to hospital, going to the extent of starting his vehicle
he did not
do so despite the deceased's protestations;
(iv)
mislead the deceased into believing that his vehicle needed jumper
leads in order to start it because of a flat battery when
in fact he
had started the vehicle in Diaie's presence without the use of any
jumper leads;
(v)
never laid a charge against the wife's attacker particularly as he
had reason (whatever it might have been) to suspect the gardener
as
the culprit?
(vi)
Why he would have accepted the deceased's purported refusal to be
taken to hospital knowing as he did, that he had been assaulting
the
deceased during that weekend
in addition to the injuries sustained
in the driveway which totally incapacitated her?
(vii)
How the deceased, once inside the house, was able to move about
without the assistance from the appellant when she had just
been
totally helpless and unable to
walk even when assisted, once she
got inside the house?
30.
The next strange conduct on the part of the appellant is that almost
throughout that weekend he spoke rationally, gently and
with some
concern to the deceased. Yet, his reactions when the deceased said or
did anything that did not accord with has views,
perceptions or likes
and dislikes he reacted with intensified aggression never hesitating
to beat up the deceased. These beatings
extended from Saturday to
Monday despite the full knowledge that the deceased must have
sustained some serious injury or injuries,
as pointed out above.
31.
I come to the issue of the mysterious black assailant. It is so that
the deceased mentioned such a person to Diale. The question
is "why".
Two probabilities immediately lend themselves to this question. The
first is that it may be "possible",
I use this word
advisedly in preference to the word "probable" because
there might have been such an intruder. The second
is that there was
no intruder at all.
32.
The evidence is quite clear that the deceased was attacked in the
driveway. The appellant and Lena Mahlangu both confirm this.
Diale
corroborates this. At the time of the attack two men were present on
the premises, i.e. the appellant and the landlord. In
addition, as
the appellant testified there were two ferocious big dogs on the
premises. There was no physical break in. The appellant
was not even
interested in explaining to Diale about the break-in and he never
reported it. As against that there is the appellant's
strange
violence and clear abuse of the deceased before and after the alleged
assault by the black male.
33.
The reaction of Hendrina Jansen van Rensberg upon hearing the report
by the deceased that she has been attacked was to ask the
deceased
who her attacker was. The deceased's response was, in my view, not
consistent with having been attacked by an unknown
person who ran
away. It appears most reasonable to expect that had that been so the
deceased would not have hesitated in saying
so. Her bursting into
tears appears consistent with the victim of abuse by a known person.
Further, the failure by deceased to
deny that it was not the
appellant who had assaulted her is significant given the appellant's
unfailing violent reaction whenever
he felt affronted by even the
most insignificant conduct on the part of the deceased. It is against
this backdrop that the intruder's
alleged presence must be
considered.
34.
According to the evidence of Diale and the appellant the deceased was
asleep when Diale arrived. On their return to the room
however, she
was awake. Was her response that she was assaulted by the unknown
black person the truth? There is something very
odd about this. Never
at any stage did the deceased say that the culprit or suspect was the
gardener. Yet the appellant led Diale
to the gardener's room to look
for him there because the deceased had presumably said that the
culprit could still be on the premises.
Was the deceased concealing
the identity of her assailant to Diale? When regard is had to the
various instances when the appellant
beat up and abused the deceased
the reason for the mysterious unknown black assailant lends itself as
an understandable attempt
at self-protection and preservation from
what could, on the probabilities of this case, have been the reason
for another assault
or beating had the appellant been identified as
the assailant and the law taken its course against him. If the
deceased could have
been beaten up for the impulsive reaction by a
pet and through no fault on her part that answer is more likely to
have been motivated
by self-preservation. This proposition appears
most likely, consistent with breaking down in tears and expressing a
desire to die
rather than disclose the identity of her assailant when
the appellant was present or in the immediate vicinity.
35.
Lastly, it appears improbable that save for the fatal blows all other
injuries were accepted by the appellant as having been
caused by him.
36.
The evidence of the appellant that the deceased fell onto a fan, or
over a chair, or onto the floor are inconsistent with the
alleged
attack by an unknown black assailant. All these were clearly
fabrications by the appellant. In my view they were desperate
ploys
to explain vainly the injuries that caused the deceased's death. It
is my considered view, in the circumstances, that the
deceased died
as a result of the injuries inflicted on her by the appellant and
nobody else.
37.
Just as the trial court found, it is my considered view that the
appellant did not have the direct intention to kill. The blunt
force
blows, especially those to the head, however, were inflicted with
such force that the attacker knew that they would result
in death. He
acted recklessly and persistently having reconciled himself with the
knowledge that death would result from such blows.
38.
It is my considered view that the trial court erred in its
assessment, and evaluation of the evidence and its conclusion that
the fatal injuries may have been caused by an unknown person. The
version of the appellant is so highly improbable that it cannot
be
reasonably possibly true. There can be only one inference from the
facts and that is that the appellant is the person who inflicted
all
the injuries on the deceased. The proper verdict is guilty or murder,
with intent being dolus eventualis.
39.
With regard to the sentence I concur with the submission of State
counsel, Ms. Mnguni. The appellant acted with such barbarity,
beating
a defenceless woman repeatedly and continuously despite her inability
to get up and return to their room. He deliberately
misled the police
into believing that he was taking the victim to hospital. Instead, he
kept her at home for two more days. This
conduct is unpardonable. It
shows gross cruelty, a shameless persistence at attempting to mislead
the court and a total unmitigated
lack of remorse. In my view the
sentence is appropriate. Any reduction in the sentence imposed by the
trial court would certainly
amount to a misdirection by this court
and
"...amount
to an undue relegation of the retributive and deterrent elements in
sentencing", (S v Nel
2007 (2) SACR 481
(SCA) at 486).
40.
The appeal is accordingly dismissed and the sentence confirmed.
G.
WEBSTER
JUDGE
IN THE HIGH COURT
I
agree.
L.
M. MOLOPA
JUDGE
IN THE HIGH COURT
I
agree.
B.
TUCHTEN
JUDGE
IN THE HIGH COURT