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[2018] ZAKZPHC 48
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Dalingxolo and Another v S (AR561/2015) [2018] ZAKZPHC 48 (6 August 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
and
THE
STATE
Respondent
AMENDED
APPEAL JUDGMENT
DATE: 06 August 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, lsipingo, 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, lsipingo. 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 lsipingo 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
Malga
s
[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
Ma/gas,
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
Ma/gas
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,
5 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
Amended: 06 August 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 (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 Pi/lay
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
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[14]
S v Sibiya
1973 (2) SA 51
(A).