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[2010] ZASCA 29
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Majikazana v S (559/09) [2010] ZASCA 29; [2010] 3 All SA 526 (SCA); 2012 (2) SACR 107 (SCA) (26 March 2010)
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case number: 559/09
No precedential significance
In the matter between:
MBULELO MAJIKAZANA APPELLANT
and
THE STATE RESPONDENT
Neutral citation:
Majikazana v
The State
(559/09)
[2010] ZASCA 29
(26 March
2010)
CORAM: MPATI P, VAN HEERDEN, MHLANTLA, SHONGWE JJA
et
THERON
AJA
HEARD: 2 MARCH 2010
DELIVERED: 26 MARCH 2010
SUMMARY
: Criminal Procedure
â fair trial â murder â fact of presiding judge previously
having heard and dismissed bail appeal not
brought to his attention
at commencement of trial â no credibility findings made in bail
application and on appeal â in absence
of any irregularity actual
bias to be proved for finding of failure of justice where no
application made for judge's recusal..
Fire and firearms â firearms â possession of in
contravention of s 2 of Act 75 of 1969 â
mens
rea
an element for contravention of the
section â use of firearm for unlawful purpose establishes
mens
rea
.
ORDER
On appeal from
: Eastern Cape
High Court (Grahamstown) (Froneman J sitting as court of first
instance).
The following order is made:
1. The appeal against the conviction on count 2 (murder)
is dismissed.
2. The appeal against the sentence of 25 years'
imprisonment imposed upon the appellant in respect of count 2
succeeds. The sentence
is set aside and replaced with one of fifteen
years' imprisonment.
3. The appeal against the conviction and sentence on
count 3 (unlawful possession of a firearm) is dismissed.
4. The appeal against the conviction on count 4
(unlawful possession of ammunition) succeeds and the conviction and
sentence are set
aside.
5. The sentence on count 2 is backdated to 4 December
2000, being the date on which sentences were imposed by the trial
court.
JUDGMENT
MPATI P
(Van Heerden,
Mhlantla, Shongwe JJA et Theron AJA concurring):
[1] The appellant was convicted by the Eastern Cape High
Court, Grahamstown (Froneman J) of murder (count 2), and unlawful
possession
of a firearm and ammunition in contravention of s 2
and 36 of Act 75 of 1969 (counts 3 and 4) respectively. He was
sentenced
to 25 years' imprisonment in respect of the murder
conviction and two years' and one year's imprisonment in respect of
counts 3 and
4 respectively. The last mentioned two sentences were
ordered to run concurrently with the sentence on count 2.
[2] The appellant, who was the first accused before the
trial court, was indicted with two other accused persons, namely Mr
Mbuyiseli
Twani (accused 2) and Mr Lonwabo Fofo Jacobs (accused 3).
Mr Twani and Mr Jacobs were charged with attempted murder (count 1)
and
the former also with an alternative to count 1, viz incitement to
commit murder. They were both found not guilty and discharged.
[3] It appears that immediately after he had been
sentenced on 4 December 2000 the appellant instructed the attorney
who had represented
him before the court below to appeal against the
convictions and the sentences imposed upon him. On 25 March 2002 the
attorney filed
an application for leave to appeal only against the
sentence of 25 years' imprisonment. He did so without an application
for condonation
for the late filing of the application. After the
passing of the appellant's attorney, a new firm of attorneys was
appointed which
discovered, during the course of their
investigations, that Froneman J, who presided in the trial, had also
presided over, and dismissed,
an appeal against the refusal of bail
by the Regional Court, Grahamstown, in an application brought by the
appellant and his co-accused.
The bail appeal was disposed of on 7
April 2000, approximately seven months before the commencement of the
criminal trial.
[4] On making the discovery mentioned above, the
appellant's attorney lodged an application for condonation for the
appellant's failure
to timeously prosecute his application for leave
to appeal. He also filed an amended application for leave to appeal,
which now also
contained an application for leave to appeal against
the convictions of murder and the unlawful possession of a firearm
and ammunition.
In addition, the attorney lodged an application for a
special entry to be made on the record on the ground that the
proceedings were
irregular, in that the trial judge, having presided
in the bail appeal, had at the time of the trial been aware of the
evidence adduced
during the bail appeal. For this reason, so it was
contended, the appellant suffered prejudice.
[5] Although the court a quo was of the view that there
were no reasonable prospects of success on appeal on either the
convictions
or sentences imposed upon the appellant, it decided to
grant the leave sought because it was prepared to grant the
application for
a special entry. The court thus made the following
special entry on the record of the criminal trial:
'The Judge presiding in this trial also presided in a
bail appeal brought by Mr Majikazana, the first accused, in case
number 91/2000
and handed down judgment dismissing the appeal in
April 2000. A copy of the record and judgment in the bail appeal is
attached hereto
marked "A". This fact was not brought to
the attention of the presiding judge before or during the trial or
before judgment
was delivered. The accused contends that the
presiding judge would have been aware of the evidence adduced during
the bail application
at the criminal trial, but when the fact of the
earlier bail appeal was brought to the attention of the presiding
judge in 2008 he
had no independent recollection of being aware of it
at the time of the criminal trial. He considers that, had he been
aware of that
fact before the trial started he would have informed
the legal representatives thereof and would probably have arranged
for another
colleague to hear the matter. Had the fact been disclosed
during the trial he might also then have recused himself as the
presiding
judge.'
As has been mentioned, leave to appeal against the
appellant's convictions and sentences was also granted.
[6] Both counsel for the appellant and the State were
agreed that there is no indication on the record that the trial judge
showed
any bias. A thorough perusal of the record has led me to the
same conclusion. I could find no evidence of any bias on the part of
the court a quo. Counsel for the appellant argued, however, that the
proper enquiry is not whether the record exhibits any sign of
bias by
the presiding judge, but rather whether the ordinary reasonable lay
person would have a reasonable apprehension of bias in
the
circumstances of this case.
[7] The appellant was charged with murder and the
unlawful possession of a firearm and ammunition. The particulars of
the murder charge
were that on or about 9 October 1999 he unlawfully
and intentionally killed Mandla Mda, a 53 year old male person (the
deceased)
at or near Fort Beaufort Hospital with a firearm. It is
common cause that the firearm that was used in the shooting of the
deceased
belonged to Mr Jacobs (accused 3), but was in the possession
of the appellant. At the bail application the appellant denied that
he killed the deceased. He testified that he never entered the
hospital where, it was common cause, the deceased was shot and killed
on the day in question. During the trial, however, the appellant
admitted that he had indeed entered the hospital and that he had
shot
the deceased. He also admitted that the deceased died as a result of
the injuries he sustained from shots fired by him (appellant).
He
testified that when he shot the deceased he was acting in
self-defence.
[8] Counsel for the appellant submitted that an ordinary
reasonable person in the circumstances of this case 'would have a
reasonable
apprehension that the presiding officer who had heard the
bail appeal might be biased when hearing the trial'. This, according
to
counsel, was because (a) the appellant had made 'an about turn in
his defence to the murder count'; (b) at the bail hearing an
allegation
was made of a previous assault in which the appellant had
been involved and where he had allegedly used a firearm; and (c) the
presiding
judge had himself indicated that, if he had been confronted
with these facts before the commencement of the trial, he might well
not have proceeded with it. Counsel contended further that, if an
unsuccessful application had been made for the recusal of the
presiding
judge, the trial would have been a nullity. And because an
ordinary reasonable person would, in this case, have had a reasonable
apprehension of bias, it should be found, even in the absence of an
application for a recusal, that the proceedings fell short of
the
constitutional guarantee of a fair trial and thus a failure of
justice had occurred.
[9] The record of the bail proceedings formed part of
the record before us. On the question of an alleged previous use of a
firearm
during an alleged assault, the appellant testified that he
had never been charged with any offence involving an assault where he
was alleged to have used a firearm, although his firearm was
subsequently confiscated by the police. He therefore had no criminal
charges pending against him. In refusing bail the regional magistrate
made no credibility findings against the appellant, nor against
the
latter's co-accused. He refused bail purely on the basis that the
appellant had failed to adduce evidence to satisfy him that
exceptional circumstances existed which, in the interests of justice,
permitted his release.
1
In the appeal against the refusal of bail, Froneman J found no fault
with the magistrate's reasoning and conclusion. In doing so
he made
no credibility findings.
2
[10] Section 322(1)(a) of the Criminal Procedure Act
('the Act') provides that, in a case of an appeal against a
conviction or of
any question of law reserved, the court of appeal
may allow the appeal if it thinks that the judgment of the trial
court should be
set aside on the ground of a wrong decision of any
question of law or that on any ground there was a failure of justice.
It was contended
on behalf of the appellant that by presiding in the
appellant's trial Froneman J committed an irregularity. The
Constitutional Court
has held that the meaning of the concept of a
failure of justice in s 322(1) of the Act must now be understood
to raise the
question whether the alleged irregularity stated in the
special entry has led to an unfair trial.
3
[11] What is of importance in this matter is that no
application was made for the trial judge's recusal. Counsel for the
appellant
submitted that during the trial neither the appellant, nor
his counsel, it seemed, was aware of the fact that the trial judge
had
also heard the bail appeal, as the appellant was not represented
by the same firm of attorneys in the regional court and in the High
Court. Section 60(11B)(c) of the Act prescribes that the record of
the bail proceedings, excluding information relating to the accused's
previous convictions or charges pending against him or her or whether
he or she has been released on bail in respect of those charges,
shall form part of the record of the trial of the accused following
upon such bail proceedings. It is therefore highly probable,
in my
view, that the appellant's legal representative at the trial would
have had sight of the record of the bail proceedings before
the
regional magistrate and on appeal at some stage during the trial or
even before its commencement. It must therefore be inferred
that the
appellant's legal representative was aware that Froneman J had heard
the appellant's bail appeal, but that he took a conscious
decision
against asking for the judge's recusal in accordance with his
instructions and the appellant's defence.
[12] In
President of the Republic
of South Africa & others v South African Rugby Football Union &
others
4
the Constitutional Court held that a judge
who sits in a case in which she or he is disqualified from sitting
because, seen objectively,
there exists a reasonable apprehension
that she or he might be biased, acts in a manner inconsistent with
s 34 of the Constitution
and in breach of the requirements of
s 165(2) and the prescribed oath of office. Because of the
failure, on the part of the
appellant and his legal representative,
to apply for the recusal of the trial judge, the inference must be
that there was no reasonable
apprehension of bias before and during
the trial. But, on the assumption that none of them had realised that
Froneman J had dealt
with the bail appeal, this court has said that
the special entry procedure 'is a useful, or perhaps even necessary,
one when the
irregularity or illegality complained of is discovered
only after the conclusion of the trial'.
5
[13] It seems to me that where, as in the present
matter, no application was made for the trial judge's recusal before
or during the
proceedings, and the judge never entertained the
question of his or her recusal in his or her mind, actual bias would
have to be
proved for an appeal, based on a special entry, to
succeed. In those circumstances, the convicted accused's weapon would
be the record
of the proceedings and the reasoned decision of the
presiding officer which allow for close scrutiny for any evidence of
bias. As
counsel for the appellant has conceded, there is nothing on
the record in the present matter to indicate that the trial judge was
in any way biased. In view of the fact that counsel made no
submissions relating to the merits of the appeal on the murder
conviction,
and wisely so, it follows that the appeal in respect of
that conviction must fail.
[14] I proceed to deal with counts 3 and 4 (unlawful
possession of a firearm and ammunition). It is common cause that the
firearm
(a 9mm calibre Norinco pistol) with which the appellant shot
and killed the deceased was the property of Mr Jacobs (accused 3).
The
facts that led to the appellant's being in possession of the
firearm and ammunition are briefly the following. The appellant, his
erstwhile co-accused and the deceased, were all members of the Fort
Beaufort branch of Uncedo Taxi Association, which had split into
two
factions. The appellant and his co-accused belonged to a small
faction, while the deceased was part of the main faction. There
were
hostilities between the two factions.
[15] During the afternoon of 9 October 1999 a fight
broke out at the Fort Beaufort Taxi rank involving an assault upon
the appellant
by certain members of the main faction and during which
Mr Jacobs was stabbed.
6
Having fallen onto the ground as a result of being stabbed and whilst
being assaulted further, Mr Jacobs managed to draw his licensed
firearm and fired three shots in the direction of his assailants, who
scattered and moved away from him. This gave him an opportunity
to
get up and run to the appellant's combi where he found the appellant,
Mr Twani, and a Mr Thamsanqa Grootboom. (There was some
evidence that
at least two shots were also fired subsequently by a member of the
main group.) It is not in dispute that the appellant,
Mr Twani, and
Mr Jacobs left the scene in the appellant's combi which was driven by
Mr Grootboom. As they drove away Mr Jacobs replaced
the magazine in
his firearm with a fully loaded one, but then requested that he be
taken to the hospital as he was feeling weak as
a result of the stab
wound. Upon their arrival at the Fort Beaufort Provincial Hospital Mr
Twani called for a stretcher.
[16] It is common cause that Mr Jacobs did not enter the
Fort Beaufort Hospital. He testified that after their arrival at the
hospital
he was taken out of the combi and conveyed in a bakkie that
was driven by one Mr Xolani Nondumo, to a hospital at Alice, where he
was admitted. It was at the hospital at Alice where the appellant
later informed him that he (appellant) had taken possession of
his
shoes, firearm and certain other personal items.
[17] The appellant testified that on their way to the
Fort Beaufort Hospital they
7
enquired from Mr Jacobs as to how he was feeling. The latter did not
respond, but his firearm 'dropped to the combi'. The appellant
took
possession of it because, he said, 'the combi was mine'. When asked
under cross-examination whether he had a licence to possess
the
firearm he said:
'M'Lord, the car that belongs to . . . myself, the
firearm of accused no 3 dropped into the car belonging to me, if I
live [leave
it?] and that firearm is found just lying in the car
belonging to me, I am the first person to be asked about it.'
From this explanation I think it can be accepted that
the appellant's intention was to safeguard Mr Jacobs' firearm and to
return
it to him at the appropriate time.
[18] It was not in dispute at the trial that at all
relevant times the appellant was the holder of a licence to possess a
firearm
and did indeed lawfully possess one.
8
At the end of the appellant's cross-examination the following is
recorded:
'And I put it to you lastly that you were in an unlawful
possession of Mr Jacobs' firearm and ammunition . . .. That is
correct.'
The appellant's legal representative did not seek to
clarify this response in re-examination.
[19] In this court Mr Els, for the State, submitted that
the appellant should not have been convicted on count 4 (unlawful
possession
of ammunition). I agree. It is alleged in the indictment
that the appellant 'unlawfully had nine rounds of 9mm calibre
ammunition
in his possession, whilst not being in lawful possession
of a firearm from which the aforementioned ammunition could be
discharged'.
As has been mentioned above, the appellant lawfully
possessed a firearm from which, according to his undisputed evidence,
9mm calibre
ammunition could be discharged. It follows that his
appeal against his conviction on count 4 must succeed.
[20] In respect of the unlawful possession of the
firearm counsel for the appellant contended that it is reasonably
possible that
the appellant did not consider his taking possession of
the firearm as unlawful and that he should therefore receive the
benefit
of the doubt. Counsel argued that, in taking possession of
the firearm under the circumstances in which he did, the appellant
thought
that he was acting with due care and diligence. In convicting
the appellant on this charge (and that of the unlawful possession of
ammunition) the trial court reasoned as follows:
'As far as the unlawful possession of the firearm and
ammunition are concerned the accused admitted that he did not have a
licence
for the firearm and the ammunition. His taking into
possession of these items to safeguard them does not appear to be
covered by
any exemption in the relevant Act. Even if there was an
implied permission to safeguard the firearm on behalf of accused no 3
there
was no need to take the firearm with him into the hospital. The
mere fact that he did so adds to the suspicion of his intent in going
into [the] hospital.'
It is necessary to place these remarks by the trial
judge in their proper context.
[21] I have mentioned above that when the appellant and
his companions arrived at the Fort Beaufort Hospital with the injured
Mr Jacobs,
Mr Twani called for a stretcher. The evidence was that on
the advice of Ms Xoliswa Mahlanyana, an employee at the hospital, Mr
Twani,
in the company of the appellant, went into the casualty
section where the former took a stretcher which he pushed out and
towards
the appellant's combi and there assisted in placing Mr Jacobs
on it. At that stage, however, the deceased, who had been grazed by
a
bullet in his right hip at the taxi rank, was already inside the
casualty section, having been conveyed there by a colleague, Mr
Fetty
Notana. He had been placed on a wheelchair by a male nurse, Mr Themba
Mvimbeli. The appellant apparently saw the deceased and,
instead of
going back to his vehicle with Mr Twani to assist Mr Jacobs, he
advanced towards the deceased, who was being wheeled away
by Mr
Mvimbeli, precisely so as to hide him from members of the appellant's
group.
9
A nursing sister, Ms Zukiswa Dasheka, testified that she attempted to
intervene by blocking the appellant from getting to the deceased,
but
that the appellant warned her to move aside 'if you donât want me
to shoot you'. From a distance of approximately four to five
paces,
according to Ms Mahlanyane, the appellant produced a firearm and shot
the deceased three times. He did so despite pleas for
mercy from the
deceased, who had raised both hands, and Mr Mvimbeli. Before the
appellant had produced the firearm, he uttered the
following words,
directing himself at the deceased: 'Oh, you are here', and 'I have
arrived now', or words to that effect. The deceased
subsequently died
from injuries sustained as a result of the shooting. It was upon
hearing these shots that Mr Twani suggested that
Mr Jacobs be taken
to the hospital at Alice.
[22] Possession of a firearm without a licence was, at
the relevant time, prohibited by s 2 of the Arms and Ammunition
Act,
10
except in certain circumstances prescribed in the Act, but which are
not relevant for present purposes. A person who contravened
the
provisions of s 2 made himself or herself guilty of an offence
(s 39(1)(h)). However, proof of possession of a firearm
without
a licence did not necessarily lead to a conviction. This court has
held that
mens rea,
in
the sense of knowledge of unlawfulness (wederregtelikheidsbewussyn),
was an element of the offence
11
and the State bore the onus of proving it.
12
[23] Mr Jacobs was unable to explain how his firearm
came to be in the possession of the appellant. In those
circumstances, the appellant's
version that he took possession of the
firearm when it 'dropped to the combi' and his explanation for taking
it into his possession
must, in my view, be accepted. Properly
construed the appellant's version was that he took the firearm
because he realised that if
it were to be found in his vehicle he
would be expected to explain its presence. I am prepared to accept
that when he took possession
of the firearm the appellant did not
have the necessary
mens rea
to found criminal liability. The same, however, cannot be said after
the shooting. I agree with counsel for the State that after
he had
intentionally shot the deceased in the circumstances testified to by
the three hospital employees and accepted by the trial
court, the
appellant could not have believed that he was still holding the
firearm innocently. He knew that he was in possession
of the firearm
without a licence and that he had used it in the commission of an
offence. He must have realised, after the shooting,
that he had just
committed an offence with a firearm for which he had no licence. The
mens rea
was therefore
established. It cannot be argued that, at the time the appellant
decided to use the firearm to shoot the deceased, he
was still merely
safeguarding it. It follows, in my view, that the appellant was
correctly convicted of the unlawful possession of
the firearm.
[24] No submissions were made on behalf of the appellant
regarding the sentence imposed upon him by the trial court in respect
of
this conviction. It therefore remains for me to consider the
appeal against the sentence of 25 years' imprisonment imposed in
respect
of the murder conviction. In considering sentence the court a
quo took the following factors into account: The appellant was, at
the time of the commission of the offence, 27 years of age,
unmarried, but with one child whom he maintained. During 1996 he was
injured in a taxi-related shooting as a result of which he had to
undergo surgery and, at the time of the trial, was still receiving
medical treatment for the injury he had sustained. The court found
that the appellant 'did not go to the hospital in a pre-meditated
fashion to shoot the deceased' and that he had been unaware of the
deceased's presence there. The fact that the appellant had been
in
custody for almost fourteen months since the day of the incident was
also taken into account. The court then went on to say:
'I accept these submissions on your behalf by your legal
representative and an acceptance of these submissions means that
there is
no obligatory sentence that you must be imprisoned for
life.'
[25] It seems to me, however, that the court a quo did
not apply its mind to the provisions of s 51(2)(a)(i) of the
Criminal
Law Amendment Act
13
which ordained that a first offender, who had been convicted of
murder where the murder was not planned or pre-meditated, shall be
sentenced to imprisonment 'for a period not less than 15 years'.
[26] The appellant was a first offender. There is no
indication, on the record, that the court a quo considered the
statutory minimum
sentence of 15 years' imprisonment for first
offenders as a starting point for arriving at an appropriate
sentence. The failure by
the court a quo to apply its mind to the
provisions of the relevant Act constitutes a misdirection, in my
view. This court is therefore
at large to consider sentence afresh.
[27] Counsel for the State informed us that he would not
advance any submissions to support a sentence in excess of the
prescribed
minimum of fifteen years' imprisonment. It is true, as
observed by the court a quo, that the appellant had committed the
most serious
crime that one could imagine, namely the unlawful
killing of another human being. The court also remarked that the
appellant 'killed
this person in a hospital when he was defenceless
in a wheelchair'. It is also true that offences related to taxi
violence were,
at the time, prevalent in the country, but I doubt
whether these factors would have driven the court below to have
considered imposing
a sentence in excess of the statutory minimum of
15 years' imprisonment, had it applied its mind to the relevant
statutory provision.
There is certainly nothing on the record to
indicate that the court intended to impose a sentence in excess of
the statutory minimum.
14
[28] Counsel for the appellant did not contend that
substantial and compelling circumstances exist which would justify
the imposition
of a lesser sentence than the prescribed minimum
sentence. I am satisfied that none exist. We were urged, however, to
consider deducting,
from the sentence to be imposed, the equivalent
of the period of the appellant's incarceration from the date of the
commission of
the offences to the date upon which he was ultimately
sentenced by the trial court, viz a period of approximately 14
months. In this
regard counsel relied on the decision of this court
in
S v Vilakazi
.
15
I do not think that a sentence of fifteen years' imprisonment will be
disproportionate to the seriousness of the offence (murder)
committed
by the appellant. I am accordingly not persuaded that there should be
any deductions from it.
[29] In the result the following order is made:
1. The appeal against the conviction on count 2 (murder)
is dismissed.
2. The appeal against the sentence of 25 years'
imprisonment imposed upon the appellant in respect of count 2
succeeds. The sentence
is set aside and replaced with one of 15
years' imprisonment.
3. The appeal against the conviction and sentence on
count 3 (unlawful possession of a firearm) is dismissed.
4. The appeal against the conviction on count 4
(unlawful possession of ammunition) succeeds and the conviction and
sentence are set
aside.
5. The sentence on count 2 is backdated to 4 December
2000, being the date on which the sentences were imposed by the trial
court.
â¦â¦â¦â¦â¦â¦â¦â¦â¦
..
L MPATI P
JUDGE OF APPEAL
Cou
nsel For Appellant: MS E CROUS
Instructed by: GRAHAMSTOWN JUSTICE CENTRE
GRAHAMSTOWN
Correspondents: BLOEMFONTEIN JUSTICE CENTRE
BLOEMFONTEIN
Counsel for Respondent: D ELS
Instructed By: DIRECTOR OF PUBLIC PROSECUTIONS
GRAHAMSTOWN
Correspondents: DIRECTOR OF PUBLIC PROSECUTIONS
BLOEMFONTEIN
1
Section 60(11)(a)
of the
Criminal Procedure Act
51 of 1977
.
2
Compare
S v Somciza
1990 (1) SA 361
(A) at 365H-I, where
this court held that it was highly undesirable that an accused who
had been found guilty by a magistrate and
whose conviction and
sentence had been set aside, should be retried, or that his trial
should be continued, before the same magistrate,
who had made strong
credibility findings in respect of all the State witnesses.
3
S v Jaipal
[2005] ZACC 1
;
2005
(1) SACR 215
(CC) para 39.
4
[1999] ZACC 9
;
1999 (4) SA 147
(CC) para 30.
5
Sefatsa & others v Attorney-General,
Transvaal, & another
1989 (1) SA
821
(A) at 843H.
6
The acceptance of Mr Jacobs' evidence by the
court a quo was not challenged.
7
The appellant said: '. . .
we
enquired from Mr Jacobs . . ..'
8
He described it as a '9mm CZ'.
9
The deceased had told Mr
Mvimbeli
about the fighting at the taxi rank.
10
75 of 1969, now repealed by the
Firearms Control
Act 60 of 2000
.
11
S v Potwane
1983
(1) SA 868
(A).
12
Compare
S v Ngwenya
1979 (2) SA 96
(A) at 100A-C.
13
105 of 1997.
14
Compare
S v Mbatha
2009 (2) SACR 623
(KZP).
15
2009 (1) SACR 552
(SCA).