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[2019] ZAFSHC 65
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Mompati v S (A 86/2018) [2019] ZAFSHC 65 (23 May 2019)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTEIN
Appeal no:
A 86/2018
MOTSAMAI
ANDRIES
MOMPATI
Appellant
v
THE STATE
Defendant
HEARD
ON:
20 MAY 2019
CORAM:
REINDERS, J
et
MURRAY
AJ
JUDGMENT
BY:
MURRAY, AJ
DELIVERED
ON:
23 MAY 2019
[1]
The Appellant,
MOTSAMAI ANDRIES MOMPATI
, was convicted of the
Rape of a Minor by the Regional Court Magistrate, Mr J.H.J.
Greyvenstein on
1 September 2017.
On the same day he was
sentenced to Life Imprisonment in terms of S 51(1) read with Part 1,
Schedule 2 of Act 105 of 1997
.
The Appellant
therefore exercises his automatic right of appeal.
[2]
The appeal lies against both conviction and sentence. Ms Kruger
appeared on
behalf of Mr Modise of Legal Aid South Africa for the
Appellant and Adv Lesie-Shale of the Office of the Director of Public
Prosecutions
for the Defence. The State supported the conviction and
sentence.
[3]
The State called three witnesses, namely 11-year old R[….]
J[….] (the
Complainant), J[….] D[….] W[….]
(known as “W[….]”), and S[….] L[….].
The trial was held
in camera
and the Complainant testified
through an intermediary. The Appellant was the only Defence
witness. He pleaded
‘Not Guilty’, did not
file a Plea Explanation and merely denied raping the Appellant.
[4]
The Complainant testified as follows: She was staying in a
house at Mafora with
her ‘sister’ (her mother’s
friend) S[….] and her ‘brother’ ‘W[….]’.
S[….] and W[….] slept in their own bedroom while the
Complainant shared a bedroom with S[….]’s 10-year
old
sister, S[….], her 6-year old brother, S[….], as well
as the 30-year old Motsamai (“the Appellant”).
The
two girls slept in one bed with the 6-year old at their feet, while
the Appellant slept in his own bed next to the window.
[5]
In the early hours of the morning the Appellant came to the bed on
which the Complainant
was sleeping. He picked her up and
carried her to the bed on which he had been sleeping. He put
her down on her back,
removed her panty and took off his clothes.
He then took out his penis and inserted it into her vagina. She
could feel
his penis in her vagina, and it was painful.
[6]
She screamed but he simply looked at the wall. When she then
managed to escape,
she ran to her sister’s bedroom, clad only
in her dress. She woke her brother and told him that the
Appellant wanted
her to sleep with him. She also told her
sister that the Appellant wanted to do strange things to her.
She then slept with her brother and sister in their bedroom and when
they woke up the next morning the Appellant had already left.
[7]
Although it was dark and she could not see the Appellant, she knew it
was the Appellant
since he was the one who slept in their bedroom.
There were only two adult males in the house, namely the Appellant
and her
brother, W[….], who was sleeping in the other room.
The next morning she was taken to her mother and then to
a doctor.
[8]
The Complainant’s brother, W[….], testified as follows:
on the
night of 15 October 2017 the Complainant was staying
with him and his girlfriend, S[….], where she had stayed for a
long
time already. The Appellant, one of his co-employees, stayed
with them as well and shared a bedroom with the Complainant and the
other two children.
[9]
During the night the Complainant came to his bedroom where he was
sleeping with S[….]
and woke him up. She looked
frightened and she was crying. She reported to him that the
Appellant was doing bad things
to her in the bedroom. He
woke S[….] to go and see what had happened to the
Complainant. According to
him, when S[….] returned she
said that nothing happened. He nevertheless told S[….]
to fetch S[….] from
the other bedroom and she and the
Complainant then slept with them in their bedroom. When he woke
up in the morning the Appellant
had already left. He did not
return that night or the next night.
[10]
W[….] testified, furthermore, that he and the Appellant were
still friends as before and
that he had no reason to falsely
implicate the Appellant. Although S[….] and the
Appellant still got along,
the Complainant was afraid of the
Appellant and did not want to see him. He also stated that the
Complainant told them what
had happened when they took her to the
elders the next day.
[11]
S[….] testified as follows: On 15 October 2017 she
resided with the Complainant
and the Appellant in the same house.
The Appellant was sleeping with the children in the other bedroom.
During the
night, while she was asleep, she heard someone crying.
She woke up and asked the Complainant why she was crying. The
Complainant then told her that the Appellant was doing funny things
to her and that he had put his penis into her vagina.
[12]
S[….] touched the front of the Complainant’s private
parts and felt that she was
hot. She reported this to W[….]
and said that the Complainant could not possibly be lying: what
she said the
Appellant had done, he indeed did. She told W[….]
that they should wait until the morning and then call the elders
to
check the Complainant. She then put the Complainant in her bed
and fetched S[….], her younger sister, to their
bed as well.
[13]
When she went to the other bedroom, the kitchen light was already on
and it shed some light in
that bedroom as well. She found the
Appellant sitting on his bed and asked him why he was doing strange
things to the Complainant
but he did not answer. He then got up
from his bed, went to the sitting-room where the lights were on,
warmed some food in
the microwave and ate while he sat on the sofa.
[14]
S[….] then went back to sleep and the next morning when she
woke up, the Appellant had
already left. They then took the
Complainant to the elders who took her to the hospital. S[….]
stated that she
had no reason to falsely implicate the Appellant and
that the Appellant would be lying if he said he did not rape the
Complainant.
[15]
The nurse who examined the Complainant the morning after the rape,
recorded in the J88 medical
report that the Complainant told her that
when she screamed while the Appellant put his penis into her vagina,
the Appellant covered
her nose and mouth with his hand. That
would explain the Complainant’s evidence that she could not
scream loudly or
for a long time.
[16]
No real version of the Appellant’s was put to the State
witnesses. He testified that
on the day of the incident he went
to sleep as usual in the bedroom which he shared with the children.
In the morning (Saturday)
he woke up and everything was fine.
He cleaned the house, washed the dishes and went to his sister’s
house. He
did not return that night or the Sunday night because
he was at a party and they were drinking. On the Monday he was
arrested
at his workplace. He denies having done anything wrong
and denies having raped the Complainant. In cross-examination he
admitted
that although they had their differences, he knew of no
reason why W[….] and S[….]would implicate him falsely.
[17]
The Court
a quo
found the Complainant to have been a credible
and reliable witness, a remarkable one for an 11-year old, especially
since by then
more than a year had passed since the incident. I
agree with that finding. She was able to describe exactly what
happened
and remained unshaken in cross-examination. She could
specify that it was vaginal penetration: she could feel his
penis in
her vagina and described the pain and her screaming.
[18]
The emotional state she was in whenever she had to testify about that
part of the night, supports
the veracity of her version. Both
W[….] and S[….] testified that she was crying when she
reported the incident
to W[….], and S[….] said she even
heard her crying during the night. The Appellant did not deny
that she was
crying when she went to report to W[….], which
she did as soon as she escaped. She also reported to S[….],
and the next morning also to the elders and to the nurse who examined
her.
[19]
The Complainant was honest enough to testify that it was dark and
that she did not see the Appellant.
Based on that, the
reliability of her identification of the Appellant was attacked.
It is well-known that because of the
fallibility of human
observation, courts must approach evidence of identification with
some caution. As was held in
S
v Mthetwa
[1]
it
is not enough for the witness to be honest: the reliability of her
observation also had to be tested.
[20]
But, although the Complainant on her own version did not see the
Appellant, the circumstances
of the case as well as the evidence of
the other witnesses support the Complainant’s identification of
the Appellant as her
assailant. It is evident that the Appellant was
well-known to the Complainant. On S[….]’s and
W[….]’s
undisputed evidence the Appellant stayed with
them virtually permanently, except occasionallly during a week-end,
and the Complainant
herself had been with them for a long time.
The Appellant slept in the same room as the Complainant. It is
therefore
highly improbable that she would have mistaken someone else
for the Appellant, even in the dark.
[21]
The possibility that the assailant might have been W[….] is
excluded by the Complainant’s
and S[….]’s evidence
that she woke him up in his bed in the other room to report the
Appellant’s actions to
him. It is also undisputed that
the Appellant and W[….] were the only two adult males in the
house on that night.
The Appellant admitted that he would have
known if another person raped the Complainant in his bed. W[….]
testified that
he closed the windows and locked the doors the
previous night. Both S[….] and the Appellant confirmed
that the windows
were closed and the doors locked during the night.
The Complainant testified, furthermore, that she noticed that the
Appellant’s
bed was empty before he put her on it.
[22]
S[….] testified, furthermore, that she saw the Appellant
sitting on his bed when she went
into the children’s room.
He was awake and when she confronted him, he got up and went to warm
up some food in the
microwave. She then saw him sitting on the
sofa, eating the food. That contradicts the Appellant’s
averment
that he went to sleep and woke up the next morning and
nothing was wrong. She denied the version put to her in
cross-examination,
namely that he was still there the next morning
and cleaned the house and washed the dishes before he left, and when
he tried to
change his story to say that he was still there when she
cleaned the house, she also denied having cleaned the house that
morning.
[23]
The Appellant’s version was therefore contradicted by the
evidence of the Complainant,
S[….] and W[….] who all
testified that he was gone when they woke up the next morning. His
denial of having done
anything to the Complainant was also
contradicted by the Complainant’s evidence that she screamed
and S[….]’s
confirmation that she heard her cry, as well
as by her evidence that the Complainant had told her that the
Appellant had put his
penis into her vagina and that, when she
examined the Complainant’s private parts, the area was still
hot.
[24]
There can therefore be no doubt about the reliability of the
Complainant’s identification
of the Appellant as the person who
raped her that night.
[25]
Although there were some minor differences between the evidence of
S[….] and W[….],
for instance where W[….]
alleged that she told him after examining the Complainant that
nothing was wrong, while she stated
that she told him that the
Complainant’s report was true, I agree with the Court
a quo
that the discrepancies were not material enough to affect their
credibility. The same applies to the discrepancy between
the
Complainant’s evidence that the Appellant did nothing when she
screamed and the J88 statement that she told the nurse
that he
covered her mouth and nose with his hand. Again, it is
not a material difference: the J88 report supports
her
testimony that she was unable to scream loudly or for a long time.
[26]
I agree with the Court
a quo
that S[….]’s version
regarding that event can be accepted, rather than W[….]’s.
She was the one
who examined the Complainant, who saw the Appellant
sitting on his bed when she went to fetch her younger sister from the
room,
who confronted him without getting an answer, who told W[….]
that the Complainant’s complaint was real and who took
the
Complainant to the elders the next morning to take her to the
hospital. Her version is supported, furthermore, by W[….]’s
own evidence that he told her to bring the girls to their bed to
sleep with them for the rest of the night. It is improbable
that he would have done so if he was told that nothing was wrong.
[27]
The Court
a quo
correctly applied caution when it evaluated
the testimony of the Complainant since she was a minor as well as a
single witness as
to the incident in the Appellant’s bed. It
was alive to the dangers inherent in the evidence of the Complainant
and
of the need to exercise caution properly, and accordingly
properly assessed the evidence and correctly found that the
contradictions
were not material and did not render the veracity of
the Complainant’s version suspect.
[28]
As held in
S
v Carolus
[2]
there is no formula for the credibility of a single witness and
section 208
of the
Criminal Procedure Act 51 of 1977
provides that an
accused may be convicted of any offence on the single evidence of any
competent witness. The Court
a
quo
found
the Complainant to be such a witness. In my view the
trial Court correctly weighed the Complainant’s evidence,
considered its merits and demerits, as supported or contradicted by
the evidence of the other witnesses, and having done so decided
that
it was satisfied that the truth had been told despite some
shortcomings or contradictions in the evidence. In my view the
Court
then, and after taking all the relevant factors into consideration,
correctly accepted the evidence of the State witnesses,
while
rejecting that of the Appellant as false.
[29]
I am satisfied, furthermore, that the Court
a quo
did not
commit any misdirection in finding that rape had indeed been
committed even though the J88 report showed no evidence of
any
injuries to the Complainant’s private parts. The
Complainant was clear in her evidence that she felt the Appellant’s
penis in her vagina and that it hurt badly enough for her to scream.
Section 3
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
defines ‘rape’ as an
unlawful and intentional act of sexual penetration without the other
person’s consent.
Section 1
of the said Act defines
‘genital organs’ as including the whole
or part of
the female genital organs and ‘sexual penetration’ as
including any act which causes penetration
to any extent
whatsoever
. The same Act determines that a child under the
age of 12 cannot give consent. The Court
a quo
therefore
correctly, after considering the relevant provisions of that Act and
the facts of this case, concluded that what had occurred,
indeed
amounted to rape.
[30]
Where the Court
a quo
did go wrong, however, was to state that
the incident was penetration ‘where severe damage was done’.
The J88 did not
record any evidence of severe physical damage, nor
was such evidence led in court. It is not clear, therefore,
whether the
Court was referring to psychological damage or making an
inference based on the Complainant’s age.
[31]
Such a finding does not affect the conviction, however, since damage
or injuries are not prerequisites
for a conviction of Rape of a Minor
in terms of Section 51(1) read with Part 1 of Schedule 2 of Act 105
of 1997. It might
have influenced the severity of the sentence
which the Magistrate was obviously intent on imposing according to
his remarks in
the sentencing judgment, referred to below.
[32]
I am therefore satisfied that the Court
a
quo
properly
assessed the totality of the evidence regarding the conviction placed
before it and correctly found the Appellant
guilty of rape.
Accordingly, the appeal against his conviction must fail.
[33]
The same does not apply to the sentence, however. The Appellant
was sentenced to the relevant
prescribed minimum sentence of life
imprisonment after the Court
a quo
found there to be no
substantial and compelling circumstances to justify a deviation. It
was submitted that the trial court
erred in doing so.
[34]
The Appellant chose not to testify in mitigation and did not call any
witnesses to do so, either.
Instead, his attorney put his personal
circumstances before the Court
a quo
, namely that the
Appellant was a first offender; that he was the sole breadwinner for
his siblings since his parents passed away,
that he was allegedly
also the primary caregiver of his own 2-year old child who resides
with its mother in Delareyville where
she does odd jobs around the
farm; that he had worked since January 2017 as a maintenance worker
for Transnet and that he earned
R3 000 a month.
Significantly, however, he also submitted that it was not a rape case
that can be described as a ‘worst
case scenario’ and
therefore does not warrant the imposition of the ultimate sentence of
life imprisonment.
[35]
The State submitted in aggravation that the Appellant had abused the
Complainant’s and
his hosts’ trust. He had shown no
remorse. As for the interests of the community, the prosecutor
submitted that
rape was incredibly prevalent in Bloemfontein,
increasingly so regarding young persons.
[36]
No assessment of the long-term effect of the rape on the Complainant
was submitted, but an English
version of a victim impact report in
the form of a handwritten note in Sesotho by the Complainant herself
in which she described
the impact the rape had had on her life was
read into the record. In it she stated that,
whereas she had always
been ‘a good child’ who did her
homework, delivered excellent school work and passed her Grades,
played with other
children and attended church, her life changed.
She no longer played with other children and no longer paid attention
in class or listened to her teacher. Her school work deteriorated.
She stopped attending church and only went out of the house
when she
was sent somewhere.
[37]
The trial Court simply listed some of the Appellant’s personal
circumstances, namely that
he is 30 years of age; a first offender;
had completed Std 9 at school; is the father of a 1 year old child
who lives with his
mother in Delareyville; was working for the
railways and earned R 3 000 a month. It made no attempt
whatsoever to evaluate
them. It does not indicate which of
these factors it considered to be mitigating, if any, or which
factors it considered
to be weighty or neutral, or which factors
individually or cumulatively it weighed up against the factors which
it considered to
be aggravating. It simply stated that there were no
substantial and compelling circumstances.
[38]
What the Court
a quo
did instead, was to discuss at great
length the seriousness and prevalence of rape, calling the rape of
young children ‘pandemic’,
before finding the offence
in
casu
to have been an extremely serious one because the Appellant
was trusted and in effect stayed with S[….]and W[….]
for
free. The Court then indicated that the ‘entire
sentence must be a good indication to all and sundry’ that the
Court would not budge, and would adhere to legislation regarding the
prescribed minimum sentence.
[39]
The trial Court concluded that a court may only deviate from what is
prescribed by the legislator
‘if there is [
sic
] really
good reasons available’. In a lengthy diatribe on the
concept of
stare decisis,
or the doctrine of precedence, the
trial Court concluded that it was bound by certain rules which it was
not allowed to discard,
inter alia
that a court of final
jurisdiction is bound to its own previous decisions from which it can
only depart if that decision is clearly
wrong. After discussing
at length the need for predictable sentences, the Court then warned
that “if anyone is closely
associated with the court they must
know the type of sentence I am going to deliver”.
[40]
One is therefore left with the distinct impression that the Court
a
quo
made no effort to determine if there were indeed substantial
and compelling circumstances, but was determined to impose life
imprisonment
simply because the legislator ordained that as the
prescribed minimum sentence for the rape of a minor and because that
was what
the Court
a quo
always imposed as ‘an
applicable sentence’. It then relied on the doctrine of
precedent to justify its failure to test
the proportionality of the
sentence in the specific circumstances of this case.
[41]
In so doing, however, despite its reference to the doctrine of
precedence, the Court
a quo
ignored the various Supreme Court
decisions which referred to the discretion which the legislator had
bestowed upon the courts
to take into consideration all the relevant
circumstances of each specific case to determine if life imprisonment
was proportionate
to that particular offence.
[42]
Marais JA, as he then was, stated in
S
v Malgas
[3]
,
for instance:
The Legislature has
however deliberately left it to the courts to decide whether the
circumstances of any particular case call for
a departure from the
prescribed sentence. While the emphasis has shifted to the
objective gravity of the type of crime and
the need for effective
sanctions against it, this does not mean that all other
considerations are to be ignored. The residual
discretion to
decline to pass the sentence which the commission of such an offence
would normally attract plainly was given to
the courts in recognition
of the easily foreseeable injustices which could result from obliging
them to pass the specific sentence
come what may.
[43]
The Court a quo’s failure to take into consideration as a
significant mitigating factor
the fact that the rape in this case is
not one of the worst kinds of rape, militates directly against what
Majiedt JA stated in
S
v Mudau
[4]
:
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 allowed 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.
[44]
It is contrary, too, to the cases in the Supreme Court of Appeal in
which it was held that there
are different degrees of seriousness of
rape and that a trial court had to make provision for such
differences in sentencing.
[45]
In
S v
Mahomatsa
[5]
,
for
instance, the Court held that
…
there are bound
to be different degrees of seriousness of rape, even in cases where
life imprisonment is the prescribed minimum
sentence in terms of the
Act. It is the duty of the court to consider all those
factors before it imposes sentence.
[46]
In
Rammoko
v Director of Public Prosecutions
[6]
in
Mpati JA cautioned that life imprisonment is the heaviest sentence a
person can be legally obliged to serve. He made it
clear that
the fact that a victim may be under the age of 16 years is not the
only criterion necessary for the imposition of life
imprisonment, but
that the objective gravity of the crime plays an important role:
Even in cases falling
within the categories [of rape] delineated in the Act there are bound
to be differences in their degree of
seriousness. There should be no
misunderstanding about this: they will all be serious but some
will be more serious than
others and, subject to the
caveat
that
follows
,
it is
only right that the differences in seriousness should receive
recognition when it comes to the meting out of punishment.
As this Court observed in
S
v Abrahams
[7]
“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.
[47]
In my view life imprisonment in the circumstances of this case is
inappropriate and disproportional
to the seriousness of the rape.
Although rape of a minor is always a very serious infringement of the
victim’s
dignity, freedom, self-respect and psychological
well-being, one needs to take into consideration that the Complainant
did not
sustain physical injuries and was not threatened or assaulted
or perpetrated with violence other than what is inevitably part of
the rape itself. It is definitely not one of the worst
types of rape.
[48]
In my view the trial Court erred in failing to find substantial and
compelling circumstances
based on the cumulative effect of the
Appellant’s personal circumstances, namely: (a) that he did
lead a productive life
by being employed and earning a regular
income; (b) that he maintained not only
his own child but
also his younger siblings as their sole
breadwinner; (c) that, although he did not show remorse, the fact
that he has a clean record
as first offender could be indicative of
prospects of rehabilitation, as was accepted by Lewis JA in
S
v Nkomo
[8]
,
and,
furthermore, (d) the fact that the Complainant did not suffer
apparent physical injuries which, although not individually
and by
itself a substantial and compelling circumstance due to s
51(3)(aA)(ii) of Act 105 of 1997, is nevertheless a relevant factor
which the Court, in order to prevent an unjust sentence, needs to
take into account as indicative of the lesser objective gravity
of
the rape (See:
S
v MM
[9]
);
and (e) the fact that there is no evidence of lasting psychological
trauma on the Complainant.
[49]
These factors, cumulatively, in my view do amount to substantial and
compelling circumstances
which outweigh the aggravating factors
submitted by the State, namely the gravity and prevalence of the
crime, the present effect
on the Complainant, the Appellant’s
lack of remorse and the Complainant’s young age.
[50]
In my view this is a clear instance in which, as was also held in
S
v Hewitt
[10]
,
the
trial court committed a misdirection of such a nature, degree and
seriousness as to show that it did not exercise its
sentencing
discretion reasonably, which allows this Court of Appeal to interfere
in the sentence.
[51]
The sentence therefore stands to be substituted with a lesser one
more appropriate and proportionate
to the circumstances of the
offence in this particular case; one which would still be severe
enough to do justice to the gravity
of the crime and the interests of
the community, and to serve the purpose of retribution and
prevention, but will give due weight
to the personal circumstances of
the Appellant and will also contain a measure of mercy.
[11]
[52]
In the result the following order is made:
1.
The appeal
against conviction is dismissed.
2.
The
conviction is confirmed
3.
The appeal
against sentence is upheld.
4.
The
sentence of life imprisonment imposed upon the Appellant is set aside
and the following sentence is substituted:
‘
The Appellant is
sentenced to 20 (TWENTY) years’ imprisonment.’
5.
In terms of
Section 51(1)(A)(i) of the General Criminal Law Amendment Act Sexual
Offences and Related Matters, Act 32 of 2007 the
Appellant’s
name is to be included in the register for Sexual Offenders against
minor children.
6.
In terms of
Section 3 of the Firearms Control Act, Act 60 of 2000 the Appellant
is automatically declared unfit to possess a firearm.
H MURRAY AJ
I concur and it is so
ordered.
C REINDERS J
For
the Appellant:
Mr T J Modise
Attorney for the
Appellant
Instructed by Legal Aid
SA
BLOEMFONTEIN
For
the Respondent:
Adv K E LESIE-SHALE
Office of the Director of
Public Prosecutions
Bloemfontein Justice
Centre
BLOEMFONTEIN
[1]
1972 (3) SA 766
(A) at 76 A - C
[2]
[2008] ZASCA 14
;
2008 (2) SACR 207
(SCA) at par
[15]
[3]
2001 (1) SACR 469
(SCA) at 481
[4]
2013 JDR 0938 (SCA) at par [13]
[5]
2002(2) SACR 435 (SCA) at par [[17]
[6]
2003(1) SACR 200 (SCA) at par [12]
[7]
2002 (1) SACR 116
(SCA) at par [29]
[8]
2007 (2) SACR 198 (SCA)
[9]
2013 (2) SACR 292
(SCA) at 302b – g at par [26]
[10]
2017 (1) SACR 309
(SCA) at par [8]
[11]
Corbett JA in S v Rabie
1975 (4) SA 855
at 866 A - C