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[2018] ZAGPJHC 517
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Bayana v S (A328/2017) [2018] ZAGPJHC 517 (7 September 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: A328/2017
In the matter
between:
ELVIS
BAYANA
Appellant
and
THE
STATE
Respondent
J U D G M E N T
MAHALELO,
J
:
[1] This is an appeal against both
conviction and sentence. The appellant, Mr Bayana was convicted in
the Boksburg Regional Court
of rape in contravention of section 3,
read with sections 1, 55, 56(1), 57, 58, 59, 60 and 61 of the
Criminal Law (Sexual Offences
and Relation Matters) Amendment Act 32
of 2007 further read with section 51(1) Act 105 of 1997 and
kidnapping.
[2] He was sentenced to life
imprisonment on count one and five years’ imprisonment on count
two. The two counts were
ordered to run concurrently. The
appellant enjoys an automatic right of appeal.
[3] It was alleged in the charge sheet
that on 8 August 2015 and at or near Angelo Squatter Camp the
appellant unlawfully and intentionally
committed an act of sexual
penetration with the complainant, to wit, D G a 14-year-old girl by
penetrating her vagina with his
penis without her consent and in
count two that, the appellant unlawfully and intentionally deprived
the complainant of her freedom
of movement by locking her inside his
shack for the whole night without her consent.
[4] The appellant was duly represented
and pleaded not guilty to both counts. He alleged that the
sexual intercourse between
him and the complainant was consensual, he
denied the allegations in count two.
[5] At the beginning of the trial the
appellant made the following formal admissions in terms of section
220 of the Act:
5.1 That the complainant slept at his
place on 8 August 2015 and he had sexual intercourse with her with
her consent.
[6] It was argued on behalf of the
appellant that the complainant had informed him that she was turning
17 years on 9 August 2015
and requested from him R50 in exchange of
sexual intercourse. Accordingly, appellant was not supposed to have
been convicted of
rape more so that the evidence of the complainant
is fraught with contradictions and inconsistencies.
[7]
The learned Regional Magistrate decided the case, regarding the fact
s
in issue, to be whether the appellant was aware of the age of the
complainant and whether there was actual consent to sexual
intercourse.
APPLICABLE
LAW
[8] The offence of rape is defined in
section 3 of the Sexual Offences Act as follows:
“
Any person (A) who
unlawfully and intentionally commits an act of sexual penetration
with a complainant (B) without the consent
of (B), is guilty of the
offence of rape.
”
[9] In terms of section 1 of the
Sexual Offences Act a child is defined as follows:
“’
Child’ means –
(a)
A person under the
age of 18 years; or
(b)
With reference to
section 15 and 16, a person 12 years or older but under the age of 16
years.
”
[10] Circumstances in subsection 2 in
respect of which a person (the complainant) does not voluntarily or
without coercion agree
to an act of sexual penetration, as
contemplated in section 3 and 4 include but not limited to, the
following:
“
(d) Where B is incapable in
law of appreciating the nature of the sexual act, including where B
is, at the time of the commission
of such sexual act:
(ii) …
(iii) A child below the age of 12
years or
(iv)
A person mentally disabled.
”
[11] Section 57 of the Sexual Offences
Act provides that:
“
(1) Notwithstanding anything
to the contrary in any law contained, a male or female person under
the age of 12 years is incapable
of consenting to a sexual act.
”
POINT
IN LIMINE
[12] In heads of argument filed in
this court the appellant raised
in limine
that he did not
receive a fair trial. The appellant argued that the presiding officer
descended into the arena and was biased in
favour of the State’s
case. He submitted that the record is replete with instances
where the learned Magistrate unfairly
engaged the appellant sometimes
at length, the task that should have been left to the prosecutor and
the defence counsel. It was
alleged that the appellant was asked
questions which proved nothing but a continuation of
cross-examination and were not intended
to seek any clarity on any
issue but merely to pressurise him to admit guilt.
[13] The following appears on the
record at page 241 between the trial court and the appellant:
“
COURT: Okay, let us go to
the, into the issue because consent is the fact in issue here, let us
go into detail with it, so you must
listen.
ANSWER: Yes.
COURT: Now this is the statement,
give me R50, I will give you sex, is there any consent there?
ANSWER: Yes.
COURT:
Where is the consent?
”
[14] At page 244 the following
appears:
“
COURT: According to you this
issue of buying sex from a child by R50, is that not tantamount to
the abuse of the child?
ANSWER:
If I knew she was a child I would not have done that.
”
[15] On page 242:
“
QUESTION: Did you
consider that buying of sex with R50 was a real consent by a child?
ANSWER: What gave me clarity was
that after she told me that the following day was her birthday and I
asked her how old is she turning,
she said 17, I knew that she was
old enough to consent to sex.
QUESTION: Ja but you are not
answering the question. The answer is simple. You bought
sex for R50 and that sex was from
the child, did you consider as a
real consent from a child.
ANSWER: Yes, because the fact that
she was a minor I did not know she told me a false age.
QUESTION: How old are you?
ANSWER: 27.
QUESTION: She told you she is 16.
ANSWER: Yes.
QUESTION: Between the two of you
who was older than the other one?
ANSWER: Myself.
QUESTION: So you could
realise that the one before you is younger.”
[16]
“Although a presiding officer is sometimes obliged to ask
questions of a witness, it is important to guard against conduct
which could create the impression that he or she was descending into
the arena of conflict or that he or she was partisan or had
pre-decided issues which should only be decided at the end of the
trial. Nor should a presiding officer put attacking proportions
to an accused. Such conduct can create the impression that the
presiding officer is acting as a cross-examiner, associating
himself
with the State’s case against the accused.
”
See
S v Mafu
[2008] ZAGPHC 38
;
2008 (2) SACR 653
(W).
[17] In
S v May
2005 (2) SACR
331
(SCA) the learned judge stated that:
“
Judicial
officers are not umpires. Their role is to ensure that the
parties’ cases
are presented fully and fairly, and that the truth is
established. They are
not required to be passive observers of a trial,
they are required to
ensure fairness and justice, and if that requires
intervention then it is
fully justifiable.
”
[18] In my opinion, the questions
posed by the court
a quo
to the appellant were merely asked to
obtain clarification. This Court does not find that the trial Court
lost its impartiality
towards, or was biased against the appellant.
This Court finds that the questions posed did not negatively impact
on the
impartiality of the court
a quo
. Accordingly, no
prejudice to the appellant prevailed. This Court cannot find that the
trial court had prejudiced the matter
and the questions posed were to
ensure justice and fairness. In the circumstances the point
in
limine
is dismissed.
[19] However, even if I am wrong in
this assessment, the evidence presented was not sufficient to sustain
a conviction on the charges
of rape and kidnapping for the reasons
discussed below.
[20] The cautionary rule is applicable
to the evidence of the complainant. She was a single witness to
the alleged incidents.
It appears, however, that the court
a
quo
ignored several contradictions in her evidence. There is also
no reason why her brother was not called to testify.
THE
EVIDENCE
[21] The complainant testified that on
8 August 2015 she was playing with her friends nearby her home.
At around 18:00 they
all dispersed and went to their respective
homes. Her parents were in Limpopo at the time. She was only left
with her older brother
at home. She went home but found no
one. She decided to go to her cousin D’s place. Along
the way she met
the appellant who pulled her by force and took her to
his shack. The appellant was not known to her by then. On their
way
to the appellant’s shack they met with the appellant’s
friends. They all went with and upon arrival at the shack the
appellant sent his friends to go and buy meat. He then took
beer bottles and went to buy beer. He locked her inside the shack.
[22] After a while he came back with
the beers, his friends followed with the meat. They all ate.
At some stage the
appellant’s friends offered her a beer. She
refused to drink indicating to them that she was a church person.
They grabbed
her and forced her to drink half of the bottle.
Thereafter the appellant’s friends left. The appellant then
locked
the door and switched off the light. He undressed her
clothes and had sexual intercourse with her without her consent.
During
the sexual intercourse she felt something warm, she asked him
what it was and he told her that it was sperms. Eventually he
climbed off her and she got dressed. The appellant instructed
her to go to her home. At that stage she took the appellant’s
cell phone from underneath his pillow and saw that the time was
24:00. She told him that it was late and not safe for her
to
leave as they kill people.
[23] She slept until the next morning.
Nothing happened to her during the night. At 06:00 she left and went
to D’s place.
She reported to D what happened to her. D
indicated to her that her brother came looking for her. She
went home in the company
of D and along the way they met with her
brother. He asked her where she slept. Before she could
explain, he assaulted her
and said to her that she must go and show
him the place where she slept.
[24] She went with her brother to the
appellant’s place and when her brother knocked the appellant
came out, he asked them
to go and talk at the gate and he fled.
People chased after him but he outran them. They then went back home.
Her brother
assaulted her again with a cable. He then phoned her
parents and they came back from Limpopo on 10 August 2015. On
that day
her father asked her what happened, when she explained to
him her mother started to assault her. She was later taken to the
police
station by her parents and a case of rape and kidnapping was
opened on her behalf. Thereafter she was taken for medical
examination.
The
complainant denied that she voluntarily went to the appellant’s
shack and that she consented to sexual intercourse.
She
disputed that she told the appellant that she was turning 17
years
the
next day and that her parents were in Limpopo.
[25] I G, the complainant’s
father testified that he was in Pietersburg when he received a call
from his son on 9 August 2015.
His son made a report to him and
on the same day he came back home. He spoke to the complainant
who reported to him that
a certain boy by the name Brown raped her.
He went to the community members and reported to them what the
complainant told
him. He was advised to go to the police
station. He went to the police station with the complainant and
opened a case
of rape against the appellant on behalf of the
complainant.
[26]
The State then closed its case where after the appellant applied for
a discharge in terms of section 174 of the Criminal Procedure
Act.
The application was refused. The appellant then testified in his
defence. He told the court that he knew the complainant before
the
day of the incident. When he was off duty the complainant used to
pass by his home and request him to buy her airtime. On the
day of
the incident the complainant passed him at his gate. She greeted him
and told him not to go away as she was going to come
back to him. She
came back and went straight to his shack. He followed her into the
shack. The complainant informed him that the
following day was her
birthday and because her parents were in Limpopo she needed R50
so
as
to
buy herself a cake to celebrate her birthday. She said to him that in
return they c
ould
an
have sexual intercourse together. He asked her how old she was, she
told him that she was turning 17 on the following day. At that
stage
the complainant undressed her clothes and l
ay
ied
on
the bed. He also undressed and put on a condom and had sexual
intercourse with her. When he finished he gave her the R50. She
dressed up and left. He went back to his friends at the gate. Later
the complainant came back and went into the shack. She informed
him
that there was no one at her home. He remained with her in his shack
when his friends went to buy meat. They came back and
ate.
[27]
He requested the complainant to leave because he wanted to go to the
tavern with his friends. She refused, she indicated that
it was late
and that she was scared. She pleaded with him to sleep at his place.
He told his friends to leave him behind. He remained
with the
complainant whereupon she requested him to buy her some alcohol. He
went and came back with hunters’ dry cider.
They each drank a
bottle and later went to sleep. Nothing happened between them. In the
morning at around 06:00 he woke her up
so that she could go home. She
said it was still early. She woke up at 07:00 and went home. Later,
while he was still sleeping
the complainant, her brother and some
other boys knocked at his door. The complainant’s brother
enquired from him if the
complainant slept at his place. He was told
to put on his shoes and was taken to the playground where he was
threatened with death.
He managed to escape and ran away. He later
received
a
cal
l
from
one of his friends. He spoke to the complainant on his friend’s
cell phone.
led
The complainant then apologised to him for telling people that he
raped her. The complainant told him that she had no choice as
her
brother assaulted her for not sleeping at home. She also told him
that she
wanted
to
had
br
ing
ought
him
cake as a sign of apology. When he went back to his shack he found
the cake on top of the table. When the police came to arrest
him they
found this cake in his shack. He denied that he kidnapped the
complainant and raped her.
[28]
James Mapheba, a Warrant Officer in the SAPS was called by the
appellant as his defence witness. He testified that on
13
August 2015 he went to Angelo Squatter Camp to arrest the appellant.
He was in the company of his crew members, the complainant
and her
mother. They found the appellant sitting outside his shack with
two male friends. He then asked the complainant
to point out
the suspect. The complainant hesitated and took some time. When
she finally pointed out the appellant, she was
smiling. He
gained the impression that the complainant
and
knew
each other with
the
appellant
knew each other.
.
[29] After the complainant had pointed
out the appellant, he explained to him that he was under arrest and
requested him to get
into the shack to take warm clothes because he
was going to take him away. He went inside the shack with the
appellant, the
complainant and her mother. He saw a big cake on
the table. He asked the appellant whose cake it was. He replied
that
it was brought to him by the complainant to apologise for saying
that he had raped her and bringing a mob of people to his shack.
According to Warrant officer Mapheba when he asked the complainant
about the cake, she confirmed what the appellant said in the
presence
of her mother. It was then that the appellant was arrested and taken
to the police station.
[30]
The trial court then called Maria Manape Galane, the complainant’s
mother to testify. The reason for doing so does not
appear from the
record. She testified that she knew the appellant by sight,
having seen him in the company of the complainant.
Upon coming
back from Limpopo with the complainant’s father, the
complainant explained to them what happened to her. On the
following
day the police came to her house and requested her to accompany the
complainant to the police station and to the appellant’s
place
as she was a minor. She went with the police to the appellant’s
place and found the appellant in his yard and
the police arrested
him. According to her, there were no discussions between the police
and the appellant or the complainant before
the appellant was
arrested. She said that when they arrived at the appellant’s
place the complainant pointed out the
appellant to the police and he
was arrested. She disputed that she or the complainant entered
into
the
appellant’s shack. She also disputed that she saw a cake on the
table. She denied that she assaulted the complainant after
she
reported to her what happened.
ISSUES
[31] The issue in this appeal is
whether the State succeeded in proving beyond a reasonable doubt that
the sexual intercourse between
appellant and the complainant was not
consensual; whether the complainant voluntarily went to the
appellant’s shack and whether
the trial court misdirected
itself in the assessment of the evidence of the complainant as a
single witness.
ASSESSMENT
OF EVIDENCE
[32] The evidence of the complainant
is that of a single witness. The court
a quo
had regard
to the cautionary rules applicable when assessing this type of
evidence. The court
a quo
was aware that it was dealing
with the evidence of a child witness and the proper approach in
evaluating the evidence of a child
witness who is also a single
witness. Evidence of a single witness needs to be satisfactory
in every material respect.
The trial court referred to
DPP v
S
2000 (2) 711 (T) and
Klink v Regional Court Magistrate NO
and Others
1996 (3) BCLR 402
(SE) as well as
S v Sauls
1981 (3) SA 172
(A) at 180E-G and cautioned itself that it had been
held that such rule does not replace common sense.
[33] In my view, the learned
Magistrate incorrectly concluded that the evidence of the complainant
was satisfactory in all material
respects in respect of the fact that
she did not consent to sexual intercourse with the appellant.
My reasons include:
33.1 During her evidence in chief, the
complainant testified that when the appellant grabbed and pulled her
to his shack she was
meeting or seeing him for the first time.
During cross-examination she testified that earlier on that day of
the incident
the appellant followed her to the shops when she was
with her younger brother and offered to buy her fruits. She also
testified
that she saw the appellant on 5 August 2015 in the company
of his friends. When she was questioned about the name of the
appellant
her evidence was that she heard the name “
Brown
Onion
” from the appellant’s friends after the
incident when they asked her if the appellant had raped her. When the
court
enquired from her if she knew the appellant before she answered
that she knew him before because he once proposed love to her and
she
refused. She also testified that the appellant once requested her
cell phone numbers from her through D and she informed him
that she
did not own a cell phone and that he promised to buy her a cell
phone. The complainant’s responses to questions
whether
she knew the appellant before the incident were confusing. She
kept on changing her versions in this regard.
It was and
remains unclear if the complainant knew the appellant before the
incident or not.
33.2 The complainant testified that
she never discussed her birthday and the fact that her parents were
in Limpopo with the appellant.
It seems strange that the
appellant knew that the very next day was her birthday, and as
testified to by her parents, they received
a report from the
complainant’s brother whilst they were in Limpopo. In an
attempt to explain this, she stated that
the appellant saw her friend
with a gift and he was told that it was for her birthday.
33.3 On the facts initially presented
by the complainant, she was locked in the shack by the appellant and
did not have the means
to escape. She testified that she did
not scream to alert the neighbours that she was held in the shack
against her will
because she was scared that the neighbours would
think that she was stealing. On this point, the complainant
testified that
whilst she was locked in the shack and left alone a
certain person came and knocked at the door and said that he wanted
to buy
something. She told this person that the door was locked and
she was left alone in the shack and that the appellant left with the
key. In my view this is not consistent with the conduct of a person
who was locked in the shack against her will. The complainant
could have asked for help from this person. She failed to that and
did not advance any reason for her failure.
33.4 Even if I were wrong in this
evaluation, the following discrepancies further support the
conclusion that the complainant’s
evidence was not satisfactory
in all material respects. The complainant testified that during the
sexual intercourse with the appellant
she felt something warm and she
asked him what it was and he replied that it was sperms. This
in my view is also not consistent
with the conduct of a person who is
being raped or that of the rapist. She stated further that once
the appellant was finished
raping her, she dressed up and the
appellant told her that she could leave, at that stage she was able
to put her hand underneath
the appellant’s pillow and took out
his cell phone to have a look at the time where after she told him
that it was late,
she was scared to go out alone as they kill people.
She then slept with him till the next morning. In my view the
complainant’s
conduct was somehow inconsistent with that of a
person who was held in 33.5 The complainant, upon meeting with her
brother on the
street, told him that a certain guy troubled her.
She did not tell him that Brown Onion raped her. When confronted
about
this she testified that her brother assaulted her before she
could tell him that she was raped. When asked why her brother
assaulted her she said she did not know. When asked if her
brother did not ask her where she spent the night she replied
that he
did and she told him after he assaulted her that she slept at a
certain boy’s place and that boy raped her. The complainant
did
not mention the name Brown Onion to her brother even though she
testified that she knew him before the incident. Even when
she was
taken by her brother to go and point out the place where she slept,
according to the appellant she firstly pointed out
a wrong person to
her brother. She did not dispute that this is what happened. When
asked why she firstly pointed out the wrong
person yet she knew the
name and place of the person who raped her, she replied that she
pointed out the residence of the boy who
she always saw with the
appellant. Fact of the matter is, the complainant did not sleep at
this boy’s place and it was not
this boy who allegedly raped
her. She had no reason to firstly point out the wrong person to her
brother.
[34] In
Rughubar v The State
[2012] ZASCA 188
(30 November 2012) it was stated that:
“
it must be accepted that
young children experience difficulties when relating to the court
what actually happened with the precision
expected of an adult,
especially pertaining to incidents concerning sexual behaviour as
well as incidents that occurred a while
ago
”
.
The
need for caution cannot be ignored. The court in asserting the need
for caution referred to
Viveiros v S
[2002] 2 All SA 86
(A)
where the Court stated:
“
In
view of the nature of charges and the age of the complainants it is
well to remind oneself at the outset that, whilst there is
no
statutory requirement that a child’s evidence must be
corroborated, it has long been accepted that the evidence of young
children should be treated with caution (R v Manda
1951 (3) SA 158
(A); Woji v Santam Insurance Co Limited
1981 (1) SA 1020
(A) at
1028B-D); and that the evidence in a particular case involving sexual
misconduct may call for a cautionary approach (S v
J
1998 (2) SA 984
(A) at 1009B). For reasons which will presently emerge, the present
case is plainly one which calls for caution.
”
[35] Furthermore the SCA in the matter
of Stevens v S
[2005] 1 All SA 1
(SCA) expressed itself as follows:
‘
Courts
in civil or criminal cases faced with the legitimate complaints of
persons who are
victims
of sexually inappropriate behaviour are obliged in terms of the
Constitution to respond in a manner that affords the appropriate
redress and protection. Vulnerable sections of the community, who
often fall prey to such behaviour, are entitled to expect no
less
from the judiciary. However, in considering whether or not claims are
justified, care should be taken to ensure that evidentiary
rules and
procedural safeguards are properly applied and adhered to.’
[36] The SCA went further and set out
how these rules and safe guards should be applied when it said as
follows at para 17:
‘
As
indicated above, each of the complainants was a single witness in
respect of the alleged indecent assault upon her. In terms
of
section
208
of the
Criminal Procedure Act 51 of 1977
, an accused can be
convicted of any offence on the single evidence of any competent
witness. It is, however, a well-established
judicial practice that
the evidence of a single witness should be approached with caution,
his or her merits as a witness being
weighed against factors which
militate against his or her credibility (see, for example, S v Webber
1971 (3) SA 754
(A) at 758G–H). The correct approach to the
application of this so-called “cautionary rule” was set
out by Diemont
JA in S v Sauls and others
1981 (3) SA 172
(A) at
180E–G as follows:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of Rumpff JA in S v Webber …). 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. The
cautionary rule referred to by De Villiers
JP in 1932 [in R v Mokoena
1932 OPD 79
at 80] may be a guide to a right decision but it does not
mean “that the appeal must succeed if any criticism, however
slender,
of the witnesses’ evidence were well-founded”
(per Schreiner JA in R v Nhlapo (AD 10 November 1952) quoted in R v
Bellingham
1955 (2) SA 566
(A) at 569.) It has been said more than
once that the exercise of caution must not be allowed to displace the
exercise of common
sense.’
(See
further all the other authorities referred to therein).
[37] The evidence of the complainant’s
mother also has its shortcomings. In her testimony in chief she
denied that she assaulted
the complainant upon arrival from Limpopo.
During cross examination she conceded that she assaulted the
complainant because
she came late at night. The complainant testified
that she was assaulted by her brother even before she could report to
him that
she was raped. She also said that as she was telling her
father that she was raped her mother also assaulted her. In the
evidence of her mother, the complainant was a child who walked about
at night and came home late.
[38] The appellant denied all the
allegations by the complainant save that he admitted that he had
consensual sexual intercourse
with her and that she slept at his
place.
He
called one defence witness Warrant Officer Mapheleba who testified
that the complainant was hesitant in pointing the appellant
out.
Further that the complainant was smiling when she pointed the
appellant out and this created an impression on him that she
and
the appellant were
was
known
to each other
.
with the appellant
.
This confirms the evidence of the appellant that he knew the
complainant before the day of the incident. The complainant, during
cross examination also confirmed that the appellant was known to her
prior the incident. Mapheleba said that he saw a cake on top
of the
table in the appellant’s shack and he enquired from the
appellant whose cake it was whereupon the appellant told him
that it
was brought by the complainant as a sign of apology for alleging to
community members and her parents that he had raped
her.
Mapheleba testified that this was confirmed by the complainant in the
presence of her mother. Mapheleba was an
independent witness
who was just performing his duties. In my view he had no reason to be
untruthful to the court. It is my respectful
view that the court
a
quo
had no reason to reject his evidence.
[39] When evaluating the totality of
the evidence, this Court is faced with the problem that the evidence
of the complainant is
riddled with contradictions which the trial
court considered as not material. In my view the trial court
misdirected itself
in this regard. Therefore, when the totality of
the evidence is considered and the appellant’s version is
compared to the
evidence adduced on behalf of the State, it cannot be
said that there was justification to reject his evidence in
preference of
the State’s version. It cannot therefore be
said on a consideration of all the evidence properly before the trial
Court,
that the State established the guilt of the appellant beyond a
reasonable doubt on both charges.
[40] It is accordingly ordered that:
40.1 The appeal is upheld; and
40.2 The conviction and sentence on
both charges are set aside.
________________________________________
M B
MAHALELO
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
I agree:
______________________________________
U
BHOOLA
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEARANCES
For
the appellant
Adv Mokakaba
Instructed
by
Legal Aid South Africa
For
the respondent
Adv Moleko
Instructed
by
Director of Public Prosecutions, Gauteng
Date
of hearing
31/07/2018
Judgment
delivered on
07/09/2018
APPEARANCES
For
the appellant:
For
the State:
Date
of
h
tearing:
Date
of judgment: