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[2021] ZAGPPHC 186
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Sphanda v S (A607/2017) [2021] ZAGPPHC 186 (29 March 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A607/2017
DPP
REF. NO: PA 122/2017
REPORTABLE:YES/NO
OF
INTEREST TO OTHER JUDGES:YES/NO
REVISED:YES/NO
DATE:
29
MARCH 2021
In
the matter between:
BARENG
TREVOR
SPHANDA
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
PHAHLANE,
AJ
[1]
The appellant was arraigned before the Regional
Court, Pretoria for contravening the provisions of sections
3 of the
Criminal Law Amendment (Sexual Offences and Related Matters) Act 32
of 2007. He pleaded not guilty and was convicted of
rape on 13 April
2015 and sentenced to 15 years imprisonment on 3 June 2015. His
application for leave to appeal against conviction
and sentence was
refused by the trial court and he was granted leave to appeal against
conviction when he petitioned the Judge
President of the Gauteng
Division on 17 October 2017. Subsequent thereto, his appeal was
enrolled for hearing, but the matter was
however removed from the
roll due to the record being incomplete. The appeal lapsed, and the
appellant
now applies for condonation for the late filing of
his application for appeal and for the appeal to be reinstated, and
stated that
there are prospects of success on the merits of the
appeal.
A
detailed
account
for the
causes of
the
delay
is
stated
in his founding affidavit in support of the application.
[2]
Advocate Mashudu on behalf of the
respondent indicated that the application for condonation and
reinstatement of the appeal are
not opposed and that in the interest
of justice, the respondent accepts the
explanation as set out
in the appellant’s affidavit in support of his application.
The
court was also satisfied with the explanation and reasons advanced
and
consequently, the condonation was granted, and the appeal
was reinstated.
[3]
The offence for which the appellant was convicted for,
occurred on 7 February 2011 where it was alleged that the appellant
had unlawfully
and intentionally committed an act of sexual
penetration with a female person, P M[…], who was […]
years old at the
time, by inserting his penis into her vagina without
her consent. The conviction of the appellant was based on the
testimony of
the complainant who was a single witness. She testified
that while
sleeping with her siblings at her
parental home, she heard a knock on the door around 20:00. She
dressed up and went to enquirer
who it was, and the appellant
responded by identifying himself with his name. She opened the door
for the appellant who said he
was there to buy cigarettes. She
explained that her family sold cigarettes and chips in the premises.
She went to her parent’s
bedroom to collect the cigarettes and
change for R20 which she received from the appellant. While still in
the bedroom, the appellant
entered the bedroom and undresses her and
raped her by inserting his penis into her vagina. She testified that
she could not scream
because the appellant closed her mouth with his
hand. The incident lasted for an hour and she did not feel any pain
and did not
experience any bleeding during the incident. She did not
tell her mother about the incident because the appellant warned her
not
to tell anyone. A few days later she started experiencing pain in
her vagina and decided to tell her younger sister about the pain
in
her vagina, and she in turn told her mother. When her mother
questioned her about the incident, she still did not disclose what
had happened. Her mother sought the assistance of a
neighbour
,
Ms C M[…], and she then disclosed to the Ms M[…] what
happened, and she was thereafter taken to the hospital and
was
examined.
[4]
Ms M[…] testified that she was summoned by the complainant's
mother and upon her arrival, she found
the complainant crying. She
said the complainant’s mother wanted the complainant to tell
her that she has been raped. The
complainant was crying and when she
asked why she was crying, the complainant told her that she had been
crying because her mother
had assaulted her. The complainant never
told her about the rape, but she learned about the alleged rape from
the complainant’s
mother.
[5]
Doctor Sebopa who examined the complainant testified that the
complainant had no vaginal injuries safe
for the fact that her
clitoris was swollen and tender. There was no scaring or bleeding of
the posterior fourchette and there were
no bumps or clefts observed
on the hymen. There were no injuries on the vagina suggesting forced
penetration. The doctor conceded
that one would have expected to find
injuries to the vagina where penetration was forceful and the
penetration was by an adult
male person with a penis, more
particularly with a child who was of the same age as the complainant.
She however noted that there
was a discharge, which according to her
opinion, was suggestive of sexual activity and that it was sexually
transmitted because
it was foul smelling and yellowish in colour.
Under cross-examination, Dr Sebopa testified that in order to
contract the sexually
transmitted infection and to have a particular
discharge present, there need not be any penetration of the penis to
the vagina
and that the touching of the penis to the vagina can cause
same. When confronted about the possibility of other causes of
infections
other than those sexually transmitted or contracted during
sexual contact, she admitted that there might be other causes such as
when the child had a thrush which is infected or that because of the
pH balance in the vagina, the thrush becomes infected. She
confirmed
that the colour of the discharge is not necessarily indicative of the
fact that it was sexually transmitted infection.
[6]
The appellant also testified and admitted going to the complainant’s
house to buy cigarette but denied
entering the house and raping her.
He testified that he stood at the door and that it took him only one
minute because he was with
his sister who was at the time waiting for
him at the gate of the complainant’s home. From the
complainant’s home,
they went to the spaza shop and thereafter
they went home and he went to sleep. His sister Ms Msibi corroborated
his evidence and
stated that when the appellant went to buy cigarette
at the complainant’s home, he spent only two minutes because
she was
waiting for him at the gate and they thereafter went to the
spaza to buy the things she needed and went home afterwards.
[7]
The trial court held that although the complainant was a single
witness, she was a good witness who did not fabricate
or contradict
her evidence. The court further held that even though the doctor made
some concessions under cross-examinations and
her evidence was
inconclusive, her conclusion however remained intact because her
findings were that the swelling of the clitoris
was due to forced
penetration by a blunt object.
[8]
As a court of appeal, this court must determine as regards the
conviction, what the evidence of the state witnesses was,
as
understood within the totality of the evidence led, including
evidence led on the part of the accused or defence, and compare
it to
the factual findings made by the trial court in relation to that
evidence, and then determine whether the trial court applied
the law
or applicable legal principles correctly to the said facts in coming
to its decision.
[9]
In order to succeed on appeal, the appellant must convince this court
on adequate grounds that the trial court was wrong
in accepting the
evidence of the State and rejecting his version as not being
reasonable possibly true.
[10]
It is trite law that a court of appeal will not interfere with
the trial court’s decision regarding a conviction
unless it
finds that the trial court misdirected itself as regards its findings
or the law
[1]
. This court has to
determine, as a court of appeal, whether the appellant was correctly
convicted in respect of the rape conviction.
C
redibility
findings and findings of fact of the trial court cannot be disturbed
unless the recorded evidence shows them to be clearly
wrong.
[11]
In
S
v Francis
[2]
it
was held that:
“
The
powers of a court of appeal to interfere with the findings of fact of
a trial court are limited. In the absence of any misdirection
the
trial court’s conclusion, including its acceptance of a
witness’ evidence is presumed to be correct. In order to
succeed on appeal, the appellant must therefore convince the court of
appeal on adequate grounds that the trial court was wrong
in
accepting the witness’ evidence - a reasonable doubt will not
suffice to justify interference with its findings, bearing
in mind
the advantage which a trial court has of seeing, hearing and
appraising a witness, it is only in exceptional circumstances
that
the court of appeal will be entitled to interfere with a trial
court’s evaluation of oral testimony.”
[12]
In
S
v Hadebe and Others
[3]
the
Supreme Court of Appeal held that:
“
In
the absence of demonstrable and material misdirection by the trial
court, its findings of fact are presumed to be correct and
will only
be disregarded if the recorded evidence shows them to be clearly
wrong”.
[13]
This position was reaffirmed by the Supreme Court of Appeal in
S
v Monyane and Others
[4]
where the court stated that:
“
This
court’s power to interfere on appeal with the findings of fact
of a trial court are limited…In the absence of
demonstrable
and material misdirection by the trial court, its findings of fact
are presumed to be correct and will only be disregarded
if the
recorded evidence shows them to be clearly wrong”.
[14]
On appeal, the findings of the trial court were attacked. Mr Viviers
submitted that the trial court
misdirected
itself in assessing and evaluating the evidence.
The basis for
his submission was premised on the fact
the trial
court having correctly pointed out that the complainant was a single
witness, it
did not consider
her evidence
which was contradicted by the
evidence of other state witnesses. Counsel insisted that the
contradictions in the complainant’s
evidence had a material
impact on her credibility and reliability as a single witness, and
also with regards to the sequence of
events that transpired in the
bedroom, and the fact that Ms M[…] indicated that the
complainant never reported to her that
she was raped because she only
learnt about the rape from the complainant’s mother. Mr Viviers
further argued that the trial
court misdirected itself by holding
that the evidence of Ms M[…] did not add value to the State’s
case and that her
evidence was highly unlikely.
[15]
The Learned Magistrate indicated in her judgment that the evidence of
Ms M[…] did not assist the court because she disputed
the
first report about the incident that was made to her as indicated by
the complainant. The court held that the evidence of this
witness was
highly unlikely because she did not agree with, and corroborate the
evidence of the complainant.
[16]
I do not agree with the finding of the trial court in this respect.
T
he complainant testified
that she was crying and threatened with a beating by her mother if
she does not tell the truth and that
Ms M[…] was roped in to
have a conversation with her and she thereafter confided in Ms M[…].
This evidence was not
supported by Ms M[…] who testified that
t
he complainant’s mother wanted the
complainant to tell her that she has been raped. In this regard, the
evidence begs clarity
as to whether Ms M[…] was the first
report, and whether the evidence of the complainant that she reported
the rape after
getting a hiding from her mother should not have been
treated with caution.
[17]
In my view, the trial court should have properly evaluated the
evidence of the complainant and taken due regard to the
probabilities
and improbabilities inherent in the evidence of the complainant, and
investigated whether such evidence was substantially
satisfactory,
rather than dismissing the evidence of Ms M[…] as being
‘highly unlikely’ and not of any assistance
to the court,
bearing in mind that Ms M[…] was a State witness.
[18]
I am of the view that the trial court misdirected itself in its
finding of facts by disregarding the evidence of Ms M[…]
on
the basis that it did not corroborate the evidence of the
complainant.
[19]
On the other hand, the court should have been cautious or applied
caution i
n
dealing with the evidence of the complainant. Although
the
cautionary rule as previously applied in the evidence of complainants
in sexual cases was abolished by the Supreme Court of
Appeal in
S vJackson
[5]
,
coupled
with the provisions of
section 60
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
which provides
that a court may not treat the evidence of a complainant in a sexual
offence with caution on account of the nature
of the offence, I am of
the view that the trial court should have applied caution when
considering (a) the evidence of the complainant
as a single witness,
(b) the evidence Ms M[…] who contradicted the complainant; (c)
the evidence of the appellant as he
denied the offence; (d) and the
evidence of the doctor who ultimately conceded that there might not
have been sexual penetration
on the complainant.
[20]
The cautionary rule relating to the evidence of children entails that
the presiding officer should fully appreciate the
dangers of
accepting the evidence of children. In terms of the cautionary rule,
the court should not easily convict unless the
evidence of the child
has been treated with due caution. Where the child witness is also
the sole witness, the evidence should
be regarded with more caution.
I
n
dealing with the evidence of children, our courts have developed a
cautionary rule which should be applied to such evidence.
Consequently,
the court will seek corroboration, even though corroboration of a
child's evidence is not required by law. Where the
child's evidence
is not corroborated, it must be scrutinised with great care and
accepted with great caution.
The
rationale for this approach was followed in
R
v Manda
[6]
where the court emphasised that the dangers inherent in relying on
the uncorroborated evidence of a young child should not be
underrated. The court explained that the danger involved in the
evidence of children can be attributed (among other factors) to
their
"imaginativeness and suggestibility", that require their
evidence to be scrutinised with care.
[21]
Having said that, advocate Mashudu on behalf of the respondent
submitted
that contradictions
per
se
, do not lead to the
rejection of state witnesses’ evidence and further that the
contradictions in this case were not fatal
to the State’s case.
Counsel argued that even though there are contradictions regarding
the person who the matter was first
reported to, and the extended
period of an hour which according to the doctor is unlikely as the
complainant would have sustained
serious injuries as opposed to the
injuries she observed during her examination on the complainant,
those contradictions were not
fatal. Counsel however admitted that
the complainant might have exaggerated on the period of time when she
was raped, but that
she did not make any mistakes about the identity
of the appellant as he was known to her and was a friend to the
complainant’s
father, and further that they stayed in the same
premises together. On the same token, counsel conceded that if one
looks at the
evidence of the complainant that she was forcefully
penetrated for an hour and compare it with the evidence of the doctor
that
one would have expected serious injuries, the State should have
submitted that this aspect on its own should have raised a concern
to
the court.
[22]
It is on this basis that Mr Viviers submitted
that
there was no proper assessment and evaluation of the evidence because
of the inherent contradictions and improbabilities, and
the fact that
there were no reasons advanced by the trial court to reject the
evidence of the appellant as improbable.
[23]
It is common cause that the complainant
in
casu
was
a single witness on the essential aspect of the charge of rape. The
legal position was aptly stated by Makgoka J in the
matter of
Mayisela
v S
[7]
as
follows:
"[7]
The issue in this appeal is whether or not there was penetration —
a key consideration which has a bearing on the
conviction. This
aspect is dependent on the evidence of the complainant who was a
single witness”.
[24]
Section 208 of the Criminal Procedure Act states clearly that ‘an
accused person may be convicted of any offence
on the single evidence
of any competent witness’. However, there are guidelines and
principles which must be adhered to by
the court if a conviction on
the evidence of a single witness should follow.
[25]
In
S
v Webber
[8]
the
court held that:
“
A
conviction is possible on the evidence of a single witness. Such
witness must be credible, and the evidence should be approached
with
caution. Due consideration should be given to factors which affirm,
and factors which detract from the credibility of the
witness. The
probative value of the evidence of a single witness should also not
be equated with that of several witnesses”.
[26]
In
S
v Sauls and Others
[9]
the
court held that
:
“
There is no
rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness. The
trial judge
will weigh his evidence, will consider its merits and demerits and
having done so, will decide whether it is trustworthy
and whether
despite the fact that there are shortcomings or defects or
contradictions in the testimony, he is satisfied that the
truth has
been told”. (See also: S v Webber
1971 (3) SA 754
(A) at 758; R
v Mokoena
1956 (3) SA 81
(A) at 85)
[27]
The court can based its findings on the evidence of a single witness
where such evidence is substantially satisfactory
and there is
corroboration which in many respects, should consist of independent
evidence
[10]
. In this regard,
the evidence of Dr Sebopa under cross-examination made it clear that,
safe for the presence of the discharge,
there were no injuries to the
vagina that would suggest penetration, given the fact that a child of
the age of the complainant,
when penetrated by an adult person with a
penis, one would have expected to find injuries to the vagina
especially where penetration
was forceful or there was dry
penetration.
[28]
The doctor conceded that having initially testified that the
complainant had a discharge which was sexually transmitted because
of
the yellowish colour and foul smell, in order to contract sexually
transmitted infection and to have that particular discharge
present,
there need not be any penetration of the penis to the vagina because
mere touching of the penis to the vagina can cause
the same effect.
She further conceded that having a discharge is not necessarily
indicative of the fact that it was a sexually
transmitted infection.
According to her, the swelling of the clitoris might have been cause
by scratching as a result of having
a discharge.
[29]
It had appeared that the doctor took the sample of the discharge to
the laboratory for testing but there was no indication
of the sample
being recorded on the J88 and the doctor was also not in possession
of the results thereof. When asked about the
doctor who initially
examined the complainant, she indicated that she was not aware that
the complainant was attended by another
medical practitioner and
stated that the previous medical practitioner should have completed
the J88 form. The evidence of the
doctor therefore shows that she
based her findings on the foul smell in the discharge.
[30]
Based on the above, it is clear that there was no conclusive medical
evidence on which the doctor could base her conclusions
or findings.
Furthermore, the evidence of the doctor did not corroborate the
evidence of the complainant
on
equally important aspects of the complainant’s evidence, in
view of the medical report and the evidence of the doctor
.
[31]
It must be emphasised immediately that by
corroboration is meant for other evidence which supports the evidence
of the complainant,
and which rendered the evidence of the appellant
less probable. This means that doctor Sebopa’s evidence did not
corroborate
the evidence of the allegation of rape,
more
particularly because she confirmed under cross-examination that had
there been forceful penetration which lasted for an hour,
there would
have been healing scars, but there was none. This, accompanied by the
fact that her finding was only based on the foul
smell in the
discharge.
[32]
Nonetheless, the trial court held that the evidence of doctor Sebopa
was that the swelling on the clitoris and hymen
area was caused by
forced penetration by a blunt object. On the contrary, this was not
the doctor’s evidence. It is on this
basis that advocate
Mashudu conceded that the concessions made by the doctor regarding
her conclusions should have raised a red
flag which should have
prompted the trial court to
ask
clarifying questions on critical issues to establish the truth, and
that was not done.
[33]
To secure a conviction in a criminal trial, the State must prove all
the elements of the crime beyond a reasonable doubt.
With regards to
the question whether trial court was correct in finding that the
State proved its case against the appellant, the
evidence of the
State has to be measured against the evidence or version of the
appellant as to whether his version could be said
to have been
reasonably possibly be true. Of course, this cannot be done in
isolation, but the court has to consider the totality
of the evidence
before it, in order to come to a just decision.
[34]
When evaluating or assessing evidence, it is imperative to evaluate
all the evidence and not be selective in determining what
evidence to
consider.
[35]
In
S
v Chabalala
[11]
the
Supreme Court of Appeal amplified as follows, the ‘
holistic’
approach required by a trial court in examining the evidence on the
question of the guilt or innocence of an accused:
“
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weights so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt”.
[36]
As already indicated, the appellant denied raping the complainant.
His counsel submitted that the trial court
erred in convicting
the appellant when there was no evidence upon which to convict. The
basis for his submission was premised on
the fact that the doctor
conceded that there was no evidence of sexual penetration and that
her findings were only based on foul
smell from a discharge.
[37]
I am inclined to agree with Mr Viviers because in rejecting the
evidence of the appellant and the defence witness, the
trial court
held that
the evidence of Ms M[…] is
rejected because she has a reason to favour the appellant because it
is her brother and would
not want something bad happening to him.
[38]
This is by no means a reason to reject a witness’ evidence. It
is important to note that the trial court indicated
in the judgment
that
the
appellant never contradicted himself during his evidence in chief or
his cross-examination, and there was also no criticism
by the trial
court against the content of the evidence of the defence witness.
This conclusion finds reference to a principle in
our law that, there
is no onus on the accused to prove his innocence as stated by the
court in
S
v Letsoko
[12]
that:
“
It
is settled law that there is no onus on the accused to prove his
innocence, and the question remains whether the state proved
the
offence charged beyond reasonable doubt”.
[39]
As indicated
supra
that in criminal proceedings the State bears the onus to prove the
accused’s guilt beyond a reasonable doubt, the accused’s
version cannot be rejected solely on the basis that it is improbable.
It is only when the trial court has made a finding on credible
evidence that the accused’s explanation is false beyond a
reasonable doubt
[13]
. The
corollary is that, if the accused’s version is reasonably
possibly true, the accused is entitled to an acquittal. It
is trite
that in an appeal the accused’s conviction can only be
sustained after consideration of all the evidence and the
accused’s
version of events.
[40]
In
S
v V
[14]
Zulman
JA said the following:
“
It
is trite that there is no obligation upon an accused person, where
the State bears the onus, to convince the court. If his version
is
reasonably possibly true, he is entitled to his acquittal although
his explanation is improbable. A court is not entitled to
convict
unless it is satisfied not only that the explanation is improbable
but that beyond reasonable doubt it is false. It is
permissible to
look at the probabilities of the case to determine whether the
accused’s’ version is reasonably true
but one
subjectively believes him is not the test.”
[41]
In determining whether the accused’s version is reasonably
possibly true, the Supreme Court of Appeal in
S
v Trainor
[15]
stated
that:
“
A
conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidence as may be found
to be
false. Independently verifiable evidence, if any, should be weighed
to see if it supports any of the evidence tendered. In
considering
whether evidence is reliable, the quality of that evidence must be of
necessity, be evaluated, as must corroborative
evidence,
if any. Evidence of course, must be evaluated against the onus of any
particular issue or in respect of the case in its
entirety”.
[42]
In casu
, this principle was never followed by the trial court.
The presumption of innocence is an established principle of the South
African
law which places the burden of proof squarely on the
prosecution. It requires that the prosecution bear the burden of
proving all
the elements of a criminal charge.
[43]
In
S
v Sithole
[16]
the
court stated that:
“
There
is only one test in a criminal case, and that is whether the evidence
establishes the guilt of the accused beyond a reasonable
doubt. The
corollary is that the accused is entitled to be acquitted if there is
a reasonable possibility that an innocent explanation
which he has
proffered might be true”.
[44]
On a conspectus of the evidence on record and the arguments and
submissions made before this court, I am of the view
that the
appellant should have been given the benefit of doubt and acquitted
by the trial court, bearing in mind the concessions
made by the
doctor. These concessions were also made by the trial court in its
judgment as well as the respondent during the appeal
proceedings -
that the appellant should have been given the benefit of doubt. In
the circumstances, it cannot be said that the
State succeeded in
proving its case or the guilt of the appellant beyond a reasonable
doubt.
[45]
In
S
v Van der Meyden
[17]
Nugent
J stated that:
“
What
must be borne in mind, however, is that the conclusion which is
reached (whether it be to convict or acquit) must account for
all the
evidence”.
[46]
The trial court in electing to disregard the evidence of the defence
without having due regard to the principles on the
question of fact
and law, is an indication that the trial court misdirected itself in
its findings.
[47]
Having given proper and due consideration to all the circumstances,
this court finds that the trial court misdirected
itself in
convicting the appellant for the offence of rape. We are of the view,
the state has not succeeded in proving its case
beyond reasonable
doubt, especially in the light of the improbabilities inherent in the
circumstances of this case. Accordingly,
we are of the view that the
state did not discharge the onus of proving beyond reasonable doubt
that the appellant raped the complainant.
[48]
In the circumstances, the appeal should succeed and the conviction
accordingly be set aside.
[49]
I propose the following order:
1.
The appeal is upheld.
2.
The conviction and sentence are set aside.
PD
PHAHLANE
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
agree, and it is also so ordered
DS
FOURIE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
APPEARANCES
For
Appellant :
Mr. E. VIVIERS
Instructed
by :
EMILE VIVIERS ATTORNEYS
CAPITAL PARK,
PRETORIA
Tel: (012)
323-9601
For
Respondent : ADVOCATE MASHUDU
ADVOCATE M.J. NETHONONDA
Instructed
by :
DIRECTOR OF PUBLIC PROSECUTIONS
PRETORIA
Tel: (012) 351-6700 /079
8891 643
Date
of hearing : 17 February 2021
Date
of delivery : 29 March 2021
[1]
See: R v Dhlumayo & Another 1948 (2) SA 677 (A).
[2]
1991
(1) SACR 198
(A)
at 198j-199a.
[3]
1997 (2) SACR 641
(SCA) at 645e-f; See also: S v Pakane and Others
2008 (1) SACR 543
(SCA) at para 15
[4]
2008 (1) SACR 543
(SCA) at para 15.
[5]
1998
(1) SACR 470 (A).
[6]
1951 (3) SA 158
(A) at 163 E-F.
[7]
(A827/2011) [2013] ZAGPPHC 91;
2013 (2) SACR 129
(GNP) (28 March
2013).
[8]
1971 (3) SA 574 (A).
[9]
1991 (3) SA 172 (A).
[10]
See S v Gentle (317/2003)
[2005] ZASCA 26
(29 March 2005).
[11]
2003 (1) SACR 134
(SCA) at para 15
[12]
1964 (4) SA 768 (A).
[13]
S v V
2000 (1) SACR 453
(SCA) at 455B
[14]
2000 (1) SACR 453
(SCA) at 455 a-b, para 3.
[15]
2003 (1) SACR 35
(SCA) at para 9
[16]
1999(1)
SACR 585 (W)
[17]
1999 (1) SACR 447
(W); See also: Rex v De Villiers
1944 AD 493
at
508-9.