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[2018] ZAKZPHC 27
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Dalingxolo and Another v S (AR561/2015) [2018] ZAKZPHC 27 (3 July 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
APPEAL
CASE NO:
AR561/2015
In
the matter between:
THEMBELIHLE
DALINGXOLO
First
Appellant
WELILE
BOLILITSHE
Second
Appellant
a
THE
STATE
Respondent
APPEAL JUDGMENT
Delivered: 03 July 2018
Mbatha
J (Masipa J concurring)
[1]
The first appellant, Thembelihle Dalingxolo, was convicted by the
Regional Court, Durban on two counts of robbery with aggravating
circumstances, one count of attempted murder, one count of unlawful
possession of a firearm and one count of unlawful possession
of
ammunition. The first appellant was sentenced to fifteen years’
imprisonment in respect of each count of robbery with
aggravating
circumstances, five years’ imprisonment in respect of the
attempted murder count, three years’ imprisonment
in respect of
unlawful possession of a firearm and one years’ imprisonment in
respect of unlawful possession of ammunition.
In terms of
s 280
of
the
Criminal Procedure Act 51 of 1977
it was ordered that the
sentences on attempted murder, unlawful possession of a firearm,
unlawful possession of ammunition and
five years on the one count of
robbery should run concurrently with count 1, being the armed robbery
count. He was effectively
sentenced to twenty five years’
imprisonment.
[2]
The second appellant, Welile Bolilitshe was convicted of one count of
robbery with aggravating circumstances, one count of attempted
murder, one count of unlawful possession of a firearm and one count
of unlawful possession of ammunition. In respect of the count
of
armed robbery with aggravating circumstances he was sentenced to
fifteen years’ imprisonment, five years’ imprisonment
in
respect of the attempted murder count, three years’
imprisonment in respect of unlawful possession of a firearm and one
years’ imprisonment in respect of unlawful possession of
ammunition. The sentences on unlawful possession of ammunition and
firearm were ordered to run concurrently with the sentence on robbery
with aggravating circumstances. The second appellant was
effectively
sentenced to 20 years’ imprisonment.
[3]
With leave of the court a quo the first appellant appeals against
both conviction and sentence. The second appellant’s
appeal is
against sentence only. The provisions of
s 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
applied to the armed robbery and attempted
murder counts.
[4]
The appeal before us was delayed due to the orders of this court on
14 November 2016 and 6 June 2017, where the court ordered
the
reconstruction of the record.. Counsel for the appellants and the
State have confirmed that the record is adequate for a proper
consideration of the appeal.
[1]
We are also of the view that the adjudication of the appeal will not
prejudice the appellants before this court,
[2]
as the record has been extensively reconstructed. Having overcome
this hurdle, I now deal with the merits of the appeal before
us.
[5]
The incident giving rise to the convictions and sentences of the
appellants arose from their arrest after the commission of
the
robbery on 13 November 2009 at Prospecton, Isipingo, in
KwaZulu-Natal. The same arrest led to the conviction of the first
appellant in respect of an earlier robbery incident which occurred on
10 November 2009 in KwaDabeka, Durban.
[6]
It was initially contended in the heads of argument by counsel for
the appellants that the trial court misdirected itself in
accepting
that the State had proved the case against the first appellant beyond
a reasonable doubt. However, at the hearing of
the appeal counsel for
the appellants conceded that he could not take the matter any further
as the conviction was correct. Counsel
for the State argued in
support of the correctness of the trial court’s findings in
respect of the convictions of the first
appellant and accepted the
concession made by counsel for the first appellant. Both counsel
argued that the trial court had however
misdirected itself in not
finding substantial and compelling circumstances when sentencing the
appellants. They submitted that
there was room for the court to
ameliorate the sentences imposed upon the appellants.
[7]
For the sake of good order, I will briefly summarise the events that
led to the conviction of the first appellant in respect
of the
incident on 10 November 2009. On 10 November 2009, security officers
Ms Gladness Vuyisile Madlala (Madlala) and Mr Mfanafikile
Goodman
Ndlovu (Ndlovu) were on duty at KwaDabeka Place of Safety in Durban,
as a consequence of their employment by Fidelity Security
Services.
Late that evening Ndlovu left the guardroom to do a routine patrol of
the premises. Whilst conducting the patrol, four
males with covered
faces emerged from the palm trees within the premises. They pointed
firearms and knives at him and ordered him
to move to the guardroom.
As they entered the guardroom, the assailants ordered both Ndlovu and
Madlala to keep quiet. The assailants
demanded a firearm from Ndlovu,
which he could not produce. He was then assaulted and his body
searched, but no firearm was found
on him. Madlala was then ordered
to proceed to the room where the safe was kept to search for the
firearm. Whilst en route to that
room, she was searched and the
firearm was found on her body. The assailants did not proceed to the
room with the safe. Instead,
they tied up Madlala and left her in the
toilet, her face covered with a jacket. After a while Madlala managed
to untie herself
and proceeded to the main room where Ndlovu was
still lying down and she untied him. Thereafter they called their
supervisor for
assistance and the police were notified.
[8]
Ndlovu was robbed of his mobile phone and transport fare. Madlala was
robbed of her service firearm, loaded with five rounds
of ammunition.
It was described as a revolver .38 special, serial number AA 042710
registered in the name of Fidelity Security
Services.
[9]
It is common cause that the assailants were not identified as they
had covered their faces and switched off the electric light
as soon
as they entered the guardroom. Madlala alluded a few days later that
she recalled the voice of one of the assailants being
that of the
first appellant. The court a quo correctly rejected that voice
identification by Madlala since she could not give any
specific
peculiarity to it which could positively identify it as being that of
the first appellant.
[10]
The second robbery occurred two days later on 13 November 2009 at the
Home Affairs office, Prospecton, Isipingo. In this incident
too,
security guards employed by Fidelity Security Services were robbed.
In respect of this robbery the State led the evidence
of Khulekani
Maphumulo (Maphumulo), who was on duty with one Bhekinkosi (Bheki).
His evidence was that at about 01h00, having completed
a routine
patrol, a male person dressed in a black jacket, black pants and a
black balaclava type hat entered the guardroom. He
pointed a firearm
at them and ordered them to lie down. Shortly thereafter another male
person wearing three quarter pants and
a blue top came in. This man’s
face was not covered. These men assaulted them. As a result of the
attack Maphumulo was robbed
of his service firearm, a .38 revolver,
serial number AA 706977 registered in the name of Fidelity Security
Services. Both men
were also robbed of their cellphones, money and
personal possessions.
[11]
The assailants thereafter ordered the guards to get up and led them
towards the outside toilet. As they proceeded towards the
toilet,
Bheki ran off in an attempt to escape. The second appellant fired a
shot at him but missed. This caused Bheki stop running
and comply
with the assailants’ instructions. The assailants finally left,
leaving the two guards in the outside toilet.
The robbery was
reported to their supervisor and the police. The police immediately
alerted other officers to be on the lookout
for suspects as described
by Bheki and Maphumulo. Bheki never returned to work following the
robbery, hence Maphumulo’s evidence
in the trial was that of a
single witness.
[12]
Maphumulo’s evidence was that the police apprehended the second
appellant, who was found in possession of his firearm
with serial
number AA 706977, barely an hour after the incident was reported to
them. Maphumulo positively identified the second
appellant as the
assailant as his face had not been covered during the robbery and the
guardroom had been illuminated by an electric
light. His evidence was
that the unmasked assailant was identifiable by a scar on his face.
The State also led the evidence of
the arresting officers of the
second appellant.
[13]
The first appellant was arrested shortly after the second appellant
was arrested. According to Constable Naidoo and Warrant
Officer Mvune
they arrested a man fitting the description given by the victims at
about 03h00 in the CBD in Isipingo near the taxi
rank. The man that
they arrested was walking, carrying a black bag and wearing a black
jacket and black pants. When they stopped
their motor vehicle next to
him, the man tried to run away but was apprehended by Warrant Officer
Mvune. Upon searching him, a
firearm, a .38 revolver, serial number
AA 042710, was found on his person and five rounds of ammunition were
found in his bag,
which also contained a balaclava. The person
arrested by the two officers was the first appellant.
[14]
It is not in dispute that the robberies took place, save that the
first appellant denied that he was one of the perpetrators
in respect
of both incidents. The trial court’s conviction of the first
appellant was based on the circumstantial evidence
before it. The
trial court accepted the evidence of the State witnesses as to how
the events unfolded and rejected the appellants’
denial of
involvement in the commission of the crimes. The trial court gave
adequate reasons for rejecting the evidence of the
first appellant.
[15]
The State’s case is based on circumstantial evidence. Therefore
the all enduring principle of logic as stated in
R
v Blom
[3]
should be applied. The first appellant was found in possession of a
firearm taken from the robbery on 10 November 2009. He was
arrested
within the vicinity of the second robbery on 13 November 2009, where
a firearm was used to commit a similar offence. He
fit the exact
description of one of the assailants in the second robbery as given
by the complainants and was found in possession
of a firearm,
ammunition and a balaclava. He was arrested immediately after the
arrest of the second appellant, who was also found
in possession of
the firearm that was stolen from the complainants the very same
morning of 13 November 2009. They were arrested
separately by
different officers, within a very short space of time.
[16]
The trial court found that the firearm found in the first appellant’s
possession linked him directly to the first robbery.
The question
before the court was whether the possession was so recent as to
employ the doctrine of recent possession. If possession
is proved the
rest will depend on the nature of the article in question and whether
it could easily be passed from hand to hand.
It must also be borne in
mind that even where possession is relatively recent, it may not
necessarily be inferred that the accused
is the thief. The basis for
the first appellant’s conviction in respect of the second
robbery, was that he was arrested in
the early hours of the morning
not very far from the place of the second robbery, walking and
dressed as described by the witness,
and was found to be in
possession of a firearm, ammunition and balaclava.
[17]
The question which this court has to consider is whether the finding
of the firearm stolen on 10 November 2009 links the first
appellant
directly to the commission of that robbery irrespective of the
falsity of his defence, in the absence of any other corroborative
evidence. In
S
v Ntsele
[4]
the court held that the onus rests upon the State in a criminal
matter to prove the guilt of the accused beyond a reasonable doubt
–
not beyond all shadow of doubt. It held further that the court was
not required to consider every fragment of evidence
individually. It
was the cumulative impression, which all the pieces of evidence made
collectively that had to be considered to
determine whether the
accused’s guilt had been established beyond a reasonable doubt.
It was therefore important to the trial
court not to focus on one
component of evidence and viewing it in isolation from other
evidence.
[18]
The issue of recent possession is a factual question. In
S
v Mavinini,
[5]
possession of a motor vehicle less than 24 hours after the robbery
taken together with the accused’s conduct was accepted
as
suggesting his involvement in the robbery. The Supreme Court of
Appeal in
S
v Mothwa
[6]
affirmed
the principles in
S
v Skweyiya
[7]
in that the court must be satisfied that:
‘
(a)
the accused was
found in possession of the property; and
(b)
the item was
recently stolen. When considering whether to draw such an inference,
the court must have regard to factors such as
the length of time that
passed between possession and the actual offence, the rareness of the
property, and the readiness with
which the property can or is likely
to pass to another person.’ (Footnote omitted)
[19]
In
Zwane
& another v The State
,
[8]
quoted with approval in
Mothwa
above,
the court stated:
‘
The inference that a person
found to be in possession of recently stolen property is the thief or
one of the thieves (or, in this
instance, one of the robbers) can
only be drawn as the only reasonable inference where the nature of
the goods stolen and the time
lapse between the theft (or robbery)
and the discovery of the goods in that person’s possession lend
themselves to such a
finding (see
S v Parrow
1973 (1) SA 603
(A) at 604B-E;
S v Skweyiya
[1984] ZASCA 96
;
1984 (4) SA 712
(A) at 715 C-D;
S v Mavinini
2009 (1) SACR 523
(SCA) para 6).
The crucial question would be whether the items concerned are of the
type which can easily and quickly be disposed
of, in which event
anything beyond a relatively short time lapse cannot be said to be
recently stolen (see
Skweyiya
at 715E). In my view the items
found in the trunk of the car had little or no value to the robbers
and are of the type that can
be disposed of quite easily. These items
were found in the trunk the very next evening after the robbery. It
is in my view a sufficiently
short time lapse to justify invoking the
doctrine of recently stolen property. But that is only one side of
the case. The other
side is the defence evidence of the first
appellant and Ms Mathlaba, set out above.’
[20]
In general, objects such as firearms and cellphones exchange hands
very quickly. In the present case, the first appellant was
found in
possession of the firearm two days after the first robbery; he was
found in possession of a firearm belonging to his employer
Fidelity
Security Guards, not just any firearm; he was not on duty and had no
reason to be in possession of any firearm from the
employer;
co-incidentally the posts that were robbed of the firearms were posts
manned by his employer Fidelity Security Services;
he was arrested
within two hours of the commission of the second robbery wearing the
apparel as described by his victims and the
balaclava used by one of
the men who robbed the guards was found in his possession; the second
appellant whom he claimed he was
travelling with that morning to
Umlazi was also found in possession of the stolen firearm from
Fidelity Security Services, stolen
on the very same morning of 13
November 2009; he ran away when police officers stopped near him;
they failed to explain how both
of them, travelling together were in
possession of the firearms belonging to the first appellant’s
employer stolen, which
had been stolen in two separate robberies. The
firearms still had their original serial numbers which proved that
Fidelity Security
Services was the owner.
[21]
It is common cause that the cellphones and other items stolen from
the victims were not recovered from the first appellant
and his
co-perpetrators. This is an indication that the main purpose of the
robbery was to rob the employees of Fidelity Security
Services of
their firearms. The same modus operandi was applied in both
robberies. The assailants demanded a firearm in each robbery,
which
is an indication that they knew how many firearms are issued per
station. Such objective facts pointed only to the first
appellant.
[22]
A further question is whether the identification by clothing was
sufficient in the circumstances to link the first appellant
to the
second robbery. His arrest occurred in the early hours of the morning
when there were few people on the streets, unlike
in broad daylight
where confusion could have easily manifested due to the number of
people present on the road. The finding of
the firearm on his person,
as well as the live rounds of ammunition and the balaclava shortly
after the robbery of 13 November
2009 was sufficient corroboration as
to the identity of one of the robbers.
[23]
As to the conviction in respect of attempted murder, the evidence of
Maphumulo is apposite here. The trial court convicted
the first
appellant on the basis of common purpose as it was the second
appellant who fired a shot at Bheki. The facts of the case
show that
the mandate had been completed. The complainants were taken to the
outside toilet after the robbery had been completed.
The shooting
occurred unexpectedly when Bheki bolted. The question is whether the
actions of the second appellant were foreseeable
by the first
appellant when he fired a shot at Bheki and missed? I do not agree
with the findings of the trial court in this regard.
As conceded by
counsel for the State the second appellant acted on his own. In
Toya-Lee
van Wyk v The State
[9]
the SCA stated at para 16 that ‘care needs to be taken to avoid
lightly inferring an association with a group activity from
the mere
presence of the person’. The question is therefore whether the
agreement to rob the guards by force, extended to
any act committed
after the completion of the mandate? The first appellant should have
been acquitted of the attempted murder count.
His mere presence did
not attract liability at that stage of the attempted murder of Bheki.
[24]
The court correctly found that the first appellant’s denial of
being found in possession of the incriminating evidence
to be false.
It also found that the first appellant’s version of being
incriminated was false as the firearm had not been
recovered before
his arrest. The trial court correctly accepted that the appellants
were arrested separately from each other as
they were arrested by
different police officers and at different places, though not far
from each other. The first appellant’s
version that he was in
the company of the second appellant at all times was correctly
rejected as he failed to explain why two
sets of officers assigned to
different duties arrested them. The first appellant gave a number of
versions, including that he was
arrested in the absence of the second
appellant who had gone to buy airtime or to speak to certain ladies.
His evidence that he
and the second appellant were en route to Umlazi
in the early hours of the morning was false.
[25]
In conclusion I am satisfied that the trial court’s approach to
the evaluation of evidence was correct. It considered
the totality of
the evidence and weighed the evidence of the State witnesses as
against that of the first appellant. The trial
court correctly
concluded that the first appellant’s version was a fabrication,
and false.
Sentence
[26]
I will jointly consider the appeals on sentence by the first and
second appellants. The appellants’ counsel submits that
this
court is at liberty to ameliorate the sentences as these are
sentences that this court would not ordinarily impose for such
convictions. Though the crimes committed were serious and prevalent,
the sentences imposed were harsh in the light that there were
no
injuries or fatalities which occurred when these crimes were
committed. Furthermore, the appellants spent two years and four
months in custody before their conviction and given that they are
young and first offenders, they are capable of rehabilitation.
[27]
On the other hand the State submits that the robberies in counts 1
and 7 fall within the purview of the minimum sentence legislation
and
attract the prescribed minimum sentence of fifteen years for first
offenders. However, it concedes that the effective sentences
of
twenty five years’ and twenty years’ imprisonment
respectively, appears to be too harsh in the circumstances,
irrespective
of the seriousness of the offences, as both of the
appellants are first offenders.
[28]
It is trite that a court will only interfere with sentence if the
trial court misdirected itself in passing sentence. Moreover,
a
misdirection alone does not suffice for a court of appeal to
interfere. A misdirection should be material, as expressed by Trollip
JA in
S
v Pillay.
[10]
In
S v
Malgas
[11]
the court stated that:
‘
A court
exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question
of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers it. To do
so would be to usurp the
sentencing discretion of the trial court. Where material misdirection
by the trial court vitiates its
exercise of that discretion, an
appellate Court is of course entitled to consider the question of
sentence afresh. In doing so,
it assesses sentence as if it were a
court of first instance and the sentence imposed by the trial court
has no relevance. As it
is said, an appellate Court is at large.
However, even in the absence of material misdirection, an appellate
court may yet be justified
in interfering with the sentence imposed
by the trial court. It may do so when the disparity between the
sentence of the trial
court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked
that it can properly
be described as “shocking”,
“startling” or “disturbingly inappropriate”.
. .in the latter situation
the appellant court is not at large in the
sense in which it is at large in the former. In the latter situation
it may not substitute
the sentence which it thinks appropriate merely
because it does not accord with the sentence imposed by the trial
court or because
it prefers it to that sentence. It may do so only
where the difference is so substantial that it attracts epithets of
the kind
I have mentioned. No such limitation exists in the former
situation.’
[29]
I now turn to the judgment on sentence as given by the learned
magistrate when he sentenced the appellants. He took into account
the
following factors: the seriousness of the offences; that the first
appellant perpetrated these offences against his employer;
that one
incident of robbery was not enough for the first appellant who
returned with an accomplice, the second appellant to rob
his
colleagues; in the execution of the second robbery, there was an
attempted murder of a security guard who tried to flee the
scene and
that the crimes were premeditated. He also took into account the
prevalence of such dangerous crimes within the community.
[30]
The learned magistrate was apprised of the personal circumstances of
the appellants: that they were 25 and 30 years old respectively;
that
they both have minor children; they were breadwinners; that they were
remorseful and capable of being rehabilitated back into
the community
being that they were first offenders. The learned magistrate did not
find that the aforementioned personal circumstances
of the appellants
amounted to substantial and compelling circumstances.
[31]
The views expressed by Nugent JA in
S
v Vilakazi
[12]
are apposite here in the determination of a sentence falling within
the ambit of the prescribed minimum sentence legislation:
‘
It is plain
from the determinative test laid down by
Malgas
,
consistent with what was said throughout the judgment, and consistent
with what was said by the Constitutional Court in
Dodo
,
that a prescribed sentence cannot be assumed a priori to be
proportionate in a particular case. It cannot even be assumed a
priori
that the sentence is constitutionally permitted. Whether the
prescribed sentenced is indeed proportionate, and thus capable of
being imposed, is a matter to be determined upon a consideration of
the circumstances of the particular case. It ought to be apparent
that when the matter is approached in that way it might turn out that
the prescribed sentence is seldom imposed in cases that fall
within
the specified category. If that occurs it will be because the
prescribed sentence is seldom proportionate to the offence.
For the
essence of
Malgas
and of
Dodo
is that disproportionate sentences are not to be imposed and that
courts are not vehicles for injustice.’
[32]
It is also my view that all factors need to be considered to come to
an appropriate sentence. The appellants were both first
time
offenders. This is an indication that there is scope for their
rehabilitation though they are not very youthful offenders.
Furthermore, they spent two years and four months in custody and
expressed their remorse to the court.
[33]
Without appearing to overemphasise the personal circumstances of the
appellants, I acknowledge that the crimes committed by
the appellants
were serious and motivated by greed. The gravity of these crimes is
that they were committed against the unsuspecting
colleagues of the
first appellant and his employer. The reckless use of the firearm by
the second appellant almost cost the life
of one of the colleagues of
the first appellant.
[34]
There is no doubt that the nature of the offences are serious and
that the interests of society need to be protected. The courts
must
send out a clear message to likeminded offenders, that such crimes
will always attract harsh sentences. Be that as it may,
courts also
treat where appropriate, first offenders with mercy, which encourages
rehabilitation of such offenders. Sentences imposed
by the courts
should not overemphasise the elements of retribution and general
deterrence only, but should also consider the elements
of personal
deterrence and rehabilitation of the offenders.
[35]
Though these were premeditated and serious offences, this court is
persuaded that there are substantial and compelling circumstances
which allow this court to ameliorate the sentences imposed by the
trial court.
[36]
The sentences of twenty five and twenty years’ imprisonment
imposed on the appellants are sentences often considered
for serious
murder convictions and second offenders in convictions of robbery
with aggravating circumstances. Such sentences are
considered for
hardened criminals not first offenders. A long sentence of
imprisonment is also considered for repeat offenders
in armed robbery
convictions, who have already been given an opportunity to
rehabilitate themselves. In
R
v Mzwakala
[13]
and
S v
Sibiya
[14]
the court held that such term of imprisonment should be imposed only
in exceptional circumstances. The person who serves such a
lengthy
period of time may at the end of serving such a long sentence, be
unable to be integrated into the society. This effect
negates the
principles of personal deterrence and rehabilitation. A long term
imprisonment sentence would defeat that very same
purpose. A holistic
approach would be to show leniency to such offenders, which will
encourage rehabilitation.
[37]
Accordingly, I make the following order:
(1) The appeal against
conviction and sentence in respect of count 2 (attempted murder)
against the first appellant is upheld.
(2) The convictions in
respect of counts 1, 3, 4 and 7 are confirmed against the first
appellant.
That the sentences
imposed by the trial court be set aside and replaced with the
following:
(3) ‘(a) Accused 1
is sentenced in respect of count 1 (robbery with aggravating
circumstances) to fifteen (15) years’
imprisonment.
(b) Accused 1 is
sentenced in respect of count 3 (possession of firearm without a
licence) to three (3) years’ imprisonment.
(c) Accused 1 is
sentenced in respect of count 4 (possession of ammunition without a
licence) to one (1) years’ imprisonment.
(d) Accused 1 is
sentenced in respect of count 7 (robbery with aggravating
circumstances) to fifteen (15) years’ imprisonment.
(e) The sentences imposed
on counts 3, 4 and 7 are to run concurrently with the sentence on
count 1.
(4) (a) Accused 2 is
sentenced in respect of count 1 (robbery with aggravating
circumstances) to fifteen
(15) years’ imprisonment.
(b) Accused 2 is
sentenced in respect of count 2 (attempted murder) to five (5) years’
imprisonment.
(c) Accused 2 is
sentenced in respect of count 5 (possession of firearm without a
licence) to three (3) years’ imprisonment.
(d) Accused 2 is
sentenced in respect of count 6 (possession of ammunition without a
licence) to one (1) years’ imprisonment.
(e) The sentences imposed
on counts 2, 4 and 6 are to run concurrently with the sentence on
count 1.
(f) Accused 1 and 2 are
each sentenced to an effective term of fifteen (15) years’
imprisonment. The sentences are antedated
to 12 March 2012.’
___________________
Mbatha
J
Date
of hearing: 22 June 2018
Date
delivered: 03 July 2018
Appearances
For
the Appellants: Adv P Marimuthu
Instructed
by: Justice Centre
Durban
For
the Respondent: Adv A.S.H. Walters
Instructed
by: The Director of Public Prosecutions
Durban
[1]
S v Chabedi
2005 (1) SA 415 (SCA).
[2]
Machaba & another v S
2016
(1) SACR 1 (SCA).
[3]
R v Blom
1939 AD 188.
[4]
S v Ntsele
1998 (2) SACR 178 (SCA).
[5]
S v Mavinini
2009 (1) SACR 523 (SCA).
[6]
S v Mothwa
2016
(2) SACR 489
(SCA) para 8.
[7]
S v Skweyiya
[1984] ZASCA 96
;
1984 (4) SA 712
(A).
[8]
Zwane &
another v The State
(426/13)
[2013] ZASCA 165
(27 November 2013) para 11.
[9]
Toya-Lee van Wyk v The
State
(575/11)
[2012]
ZASCA 47
(28 March 2013).
[10]
S v Pillay
1977 (4) SA 531
(A) at 535E-H.
[11]
S v Malgas
2001 (1) SACR 469
(SCA) para 12.
[12]
S v Vilakazi
2009 (1) SACR 552
(SCA) para 18.
[13]
R v Mzwakala
1957 (4) SA 273
(A) at 278E-F.
[14]
S v Sibiya
1973 (2) SA 51
(A).