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[2017] ZAGPPHC 113
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Mahlati and Another v S (A744/15) [2017] ZAGPPHC 113 (30 March 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO:A744/15
DATE:
30 MARCH 2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:NO
In
the matter between:
EMMAH
VUYELLA
MAHLATI
FIRST APPELLANT
PETER
MAHLANGU
SECOND APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
SIBUYI
AJ (MOTHLE J CONCURRING):
I
NTRODUCTION
[1]
The first and second appellants, who were Thirty and Twenty-Eight
years old, respectively, were convicted on charges of Housebreaking
with the intent to rob ("Count 2") and Robbery with
aggravating circumstances ("Count 3") in the Benoni
Regional
Court. The appellants were legally represented throughout
the trial. The first appellant was sentenced to Six years
imprisonment,
with Two years thereof suspended for a period of Five
years on Count 2 and Six years imprisonment on Count 3. The second
appellant
was sentenced to Six years imprisonment on Count 2,
Eighteen years imprisonment on Count 3, with the Four years
imprisonment on
Count 2 ordered to run concurrently with the sentence
imposed on Count 3. The effective terms of imprisonment are Ten and
Twenty
years, respectively. They were also declared unfit to possess
a firearm in terms of
Section 103
of the
Firearms Control Act, 60 of
2000
.
[2]
The first appellant applied for leave to appeal against her
conviction only and the second appellant applied for leave to appeal
against both the convictions and sentences. The appellants were
granted leave to appeal by the trial court on 19 June 2015. The
appellants now appeal against the convictions; and the convictions
and sentences, respectively.
THE
FACTUAL BACKGROUND
[3]
The relevant factual background to this appeal requires mentioning.
The first appellant was employed by the complainant, Mr.
Flick, as a
domestic worker for approximately 12 months at the time the offences
were committed. The complainant stayed on a plot
with his 10-year-old
son. The first appellant had no keys to the complainant's house.
Should the need arise, the complainant would
open the house doors for
the first appellant to have access to the house. The complainant
would usually leave the entrance door
open for the first appellant to
access the house and carry out her duties in the mornings. On the
morning of 20 November 2010,
the complainant woke up at approximately
Six o'clock as usual. He went to unlock the security gate which
isolate the bedrooms from
the lounge area of the house. Just after
unlocking the security gate he heard someone laughing inside the
lounge area. He looked
at the front door and realised that it was
open. He then saw two strangers within the lounge area. The next
moment he was struck
with something on his head from behind a small
wall that is built inside the lounge area. He fought his assailants.
Whilst fighting,
he became dizzy.
[4]
One of the assailants went down the passage straight to the
complainant's bedroom. That assailant went straight to the cupboard
in which the complainant had a safe. The complainant was then dragged
down the passage to the main bedroom, where he witnessed
the other
assailant struggling to open the safe. The assailants threatened the
complainant saying that if he did not assist them
to open the safe,
his son would be killed. One of the assailants had a rifle, which he
pointed at the head of the complainant's
son and threatened to blow
out the boy's brains. The complainant then assisted in putting in the
correct key numbers to the
safe. The
safe opened and the complainant removed
R6000.00 in cash from the
safe and handed the money to
one of the assailants. He was however pushed away from the safe
and one of the assailant
then removed a 9mm Parabellum pistol, with
the serial number: 15771609, from the safe. The complainant and his
son were tied up
together and put in a cupboard. The assailants left
the house. The complainant and the son untied themselves. The
complainant discovered
that his cellular phone was taken and the
landline was pulled off the wall. He was taken to hospital for
treatment and he spend
three days in hospital. He sustained numerous
injuries. The son suffered no physical injuries. The complainant and
the son were
traumatized by the events. They received
counseling due to the trauma suffered. The son was seriously
traumatized. About
two and half years after the incident, the son did
not want to walk from the lounge area to the bedroom alone. His good
school
performance went down by at least 50 percent. However, the
marks have started improving. The firearm was recovered and returned
to the complainant.
[5]
Captain Van den Berg visited the crime scene. He was the Crime Office
Commander at Benoni Police Station. He was in the police
force for 22
years and had been a captain for 5 years at the time. After
inspecting the scene, he was of the view that the first
appellant was
responsible or involved in the robbery. He got his colleagues
together and send them to fetch the first appellant
from her home.
The first appellant was fetched and taken into the police station.
Upon her arrival at the police station, Captain
van den Berg told the
first appellant that she was considered a suspect in the robbery. He
then notified her of her rights, specifically,
her right to remain
silent, the fact that she was entitled to have a lawyer present at
that stage. Captain van den Berg explained
to the first appellant why
he considered her a suspect in the robbery.
The
first appellant broke down and cried. She informed Captain van den
Berg that she suspected that her boyfriend, by the name of
Thato and
one Peter were involved in the robbery. The first appellant further
informed Captain van den Berg that Peter phoned her
at approximately
One o'clock during the morning of the robbery, informing her that
they were already in the house and the burglar
door leading to the
bedroom was locked. Peter asked her where the burglar door key was.
The first appellant did not tell Peter
where the key was. The first
appellant knew Peter from One Stop Shop. They would travel in the
same taxi to and from work. Whilst
in the taxi Peter asked her for
information about the house where she worked. The first appellant
gave Peter all information about
the complainant's house and the
contents thereof. The first appellant was then placed under arrest
and detained.
[6]
Later, the first appellant was booked out from the cells. She
voluntarily pointed out her boyfriend, Thate. The police arrested
Thate. Thato agreed to assist the police and specifically that he
would assist in pointing out Peter. Thate then telephoned Peter
and
arranged a meeting with him.. Peter came from some Fish and Chips
shop in Daveyton. Thate pointed Peter out. Constable Shabalala
arrested Peter and explained him his arrest constitutional rights.
Peter took the police to Daveyton hostel and pointed out a room
where
among other things, the complainant's firearm was recovered. EXHIBIT
C was handed in as a confession statement made by the
second
appellant. The trial court ruled that EXHIBIT C is inadmissible
because despite the fact that the second appellant indicated
that he
required legal representation before making the confession statement,
he was not afforded that opportunity.
[7]
At the close of the state case, all the accused, including the
appellants made applications to be discharged in terms of section
174
of the Criminal Procedure Act, 51 of 1977 ('the CPA"). The trial
court dismissed the section 174 applications on the basis
that there
was indeed a
prime facie
case, upon which a court acting
cautiously, might be able to convict the accused. The accused chose
not to testify but exercised
their constitutional rights to remain
silent.
[8]
In this appeal the appellants requested this court to condone the
late filing of the appellants' Heads of Argument. The State
does not
oppose condonation. Having regard to the short period of delay and
explanation therefor the late filing of the appellants'
Heads
Argument is hereby condoned.
[9]
The
first
question in
this appeal
is
whether
or not
the
State discharged the onus
of
proving
the
guilt
of
the
appellants
beyond
reasonable
doubt.
I
t
is
a
trite
principle
that
in
criminal
proceedings
the
prosecution
must
prove
i
ts
case beyond
reasonable
doubt
and
that
a
mere
preponderance
of
probabilities
is
not
enough.
Equally
trite is
the
observation that, in
view of
this
standard of proof in
a criminal
case, a court does not have to be convinced that every detail of an
accused's
version
is
true.
In this
matter
the
appellants
decided
not
to
put
forward
their version but simply denied any involvement in
the
commission of
the
offenses. The trial court and this court are dependent on the
evidence of
the
prosecution
in
deciding
whether or not
the state
had
proved
i
ts
case
against the
appellants
beyond
reasonable
doubt.
In
S v
Boesak
[1]
the
court
held that
"The fact
that
an
accused
person
is
under
no
obligation to testify
does
not
mean that
there are no consequences attaching to a decision to remain silent
during
the
trial.
If there
is evidence
calling for
an
answer,
and
an
accused
person
chooses to remain silent in
the face of
such
evidence, a
court may
we'll
be entitled
to
conclude
that
the
evidence
is
sufficient
in the
absence
of
an
explanation
to prove
the guilt of the accused. Whether
such a
conclusion
is
justified will
depend
on
the
weight
of
the
evidence".
FIRST
APPELLANT'S CASE
[10]
Counsel for the appellants submitted that the trial court erred in
finding that the first appellant is an accomplice to the
offences
because it was not proved on the evidence presented that she had the
requisite intention of assisting in or furthering
the commission of
the offences. Further, it was argued on behalf of the first appellant
that the trial court erred by not properly
applying the test as laid
down in Rex v Blom
1939 AD 188
when dealing with circumstantial
evidence. The essence of the argument was that there was no direct
evidence linking the first
appellant to the commission of the
offences and that circumstantially, from the proved facts, one cannot
draw as the only reasonable
inference, the inference that she had the
necessary intention of assisting in or furthering the commission of
the offences.
[11]
The trial court considered and applied the Blom case. The trial court
moved from the premises that the following proved facts
came from the
evidence: that the first appellant was not a perpetrator; she
admitted providing information about the household
and the contents
of her employer's home to Peter; on 20 November 2015, the day of the
incident, she received a telephone call at
One o'clock in the morning
from the same Peter informing her that they were already in the
complainant's house and the burglar
door leading to the bedroom was
locked. Peter then asked her where the burglar door key was. The
first appellant did not want to
tell Peter where the key was at that
stage as the complainant would know that she was involved; the
perpetrators knew exactly what
they were looking for as they went
directly to the cupboard where the safe was and removed the contents
thereof; the first appellant
did not notify police that morning on
learning that Peter and the other perpetrators were in the process of
committing offences
at the complainant's house; there were no signs
of burglary; the first appellant voluntarily pointed out her
boyfriend, Thate,
Thato voluntarily pointed out Peter and Peter in
turn voluntarily took the police to the hostel, where the firearm
belonging to
the complainant was found.
[12]
Relying on the above proved facts, the trial court concluded that the
perpetrators had inside information provided by the first
appellant.
Hence, they knew where to go, and during the commission of the
offences they called the first appellant on her phone
and asked for
the burglar door key. The first appellant did not alert police of the
incident. The trial court concluded that the
first appellant was not
innocent as she claimed. Relying on the quotation from the
publication, called Criminal Law, CR Snyman,
the 4th edition, more
specifically on page 269 of the said publication, the trial court
concluded that "Looking at the evidence
as a whole, the fingers
point to one person only, ...[the first appellant] ..." and that
..."what she did ... pertaining
to the events and the
[offences], indeed makes her an accomplice".
[13]
The trial
court, except in respect of Nemalodi, was satisfied with the honesty
and
reliability of state witnesses. It is trite that a court of appeal
will be hesitant
to
interfere with the factual findings and evaluations of the evidence
by a trial court
and will
only
interfere
where
the
trial
court
materially
misdirected
itse
l
f
insofar as
i
ts
factual and credibility findings are concerne
d
[2]
.
I
n
the absence of demonstrable and material misdirection by
the trial
court,
i
ts
findings of
fact are
presumed to be correct and will only be disregarded if the recorded
evidence shows
them
to
be clearly
wrong
[3]
. Bearing
in mind the
advantage
that
a
trial
court
has of seeing, hearing and appraising a witness,
i
t
is only in exceptional cases that this court will be entitled to
interfere with a trial court's evaluation of oral
testimony
[4]
.
The
trial
court's
factual
findings
and
evaluation
of
evidence
are dealt
with
herein
below.
[14]
I
now turn to
the trial court's evaluation of the testimony. The two cardinal rules
of logic
set out in
Rex v
Blom
[5]
applies. The first
question being, whether or not the
inference
sought
to
be
drawn
is
consistent
with
the
proved
facts,
and
secondly,
whether
or
not the
proved
facts
are
such that they
exclude
every
reasonable
inference
save
the
one
sought
to
be
drawn.
[15]
To convict the first appellant as accomplice on the facts of this
matter one has to find that she directly or indirectly intentionally
assisted in or furthered the commission of the offences. It is common
cause that she was not directly involved in the commission
of the
offences as a perpetrator. Now, the next question is: Did she
knowingly aided and or assisted in the commission of the offences
in
question? If the answer is yes, then she was correctly convicted as
an accomplice and a negative answer means the first appellant
should
have been acquitted. In order for the State to successfully meet its
burden to find an accused guilty of accomplice liability,
it must
prove that the accomplice had the intent to help with the offence
being committed. This means that the accomplice has to
know that the
principal is planning to commit an offence and that the accomplice
intends to help the principal succeed in the commission
of the
offence.
[16]
Generally and logically, the main perpetrator of a crime is referred
to as a principal while the individuals assisting in the
commission
of the crime are referred to as accomplices. Even though the
accomplice plays a supporting role in the crime and does
not actually
carry it out, he or she is just as culpable as the principal. For
example, the principal may come into a bank and
rob it at night, and
an accomplice who works for the bank may leave the door unlocked or
give the robber the security code to get
into the bank. They are both
guilty on the robbery count.
[17]
In the present case, the conclusion that the first appellant knew
that at least Peter, and her boyfriend, Thato, were planning
to
commit the robbery or house breaking is not supported by the proved
facts. Such conclusion is based on a pure speculation. The
first
proved fact linking her to the robbers before the robbery is that she
gave the house information to Peter. The second proved
fact is that
Peter called her whilst Peter was at the scene of robbery to ask for
the burglar door key. Both these facts are alleged
to have been
volunteered by the first appellant and were not disputed during the
cross-examination of state witnesses. However,
the first appellant
never admitted to Captain van den Berg that she was involved in the
planning of the robbery and or the housebreaking
or that she knew
that any of the perpetrators was planning to carry out the robbery
and or the housebreaking. Nor did the State
attempted to prove her
involvement in the planning stages and her knowledge of the plans.
Hence, it cannot be said that she knowingly
aided or assisted in the
commission of the offences. Therefore, the circumstances are such
that one cannot safely conclude that
the first appellant definitely
knew that her boyfriend and Peter were planning to rob her employer
and she intended to help them
to accomplish their mission. In the
circumstances, as correctly submitted by Counsel on behalf of the
first appellant, the above
drawn inferences, that the first appellant
was involved in the planning of the robbery and or the housebreaking
or that she knew
of the plans to commit these offences are not
consistent with the proved facts.
[18].
Further, the proved facts are such that they do not exclude every
reasonable inference save the drawn inferences. The perpetrators
could have used her to get information about the house but kept their
plan to themselves. There was no evidence of breaking into
the house.
Meaning that the perpetrators either had the key to the entrance door
or the entrance door was left unlocked. So, if
they planned the
robbery with her, she could have alerted them that they would also
need a key for the burglar door and or assisted
them to get past the
burglar door. There would have been no need for their call at 1
o'clock that morning. Someone, for example,
the gardener could have
assisted them to get access to the house. In the circumstances, the
trial court materially misdirected
itself insofar as its factual
findings are concerned. The recorded evidence shows that the trial
court's findings of fact are clearly
wrong. Hence, such findings
could safely be disregarded. Further, the trial court's evaluation of
oral evidence was also wrong.
Especially, the drawing of inferences.
This gives this court the power to interfere with a trial court's
evaluation of oral testimony.
[19]
Lastly, the fact that the first appellant become aware at about 1
o'clock that morning that Peter was at the crime scene does
not make
her an accomplice. This fact did not require that the first appellant
take greater action to neutralize further commission
of the offences
by Peter and his co-perpetrators. Especially, having not initially
provided critical assistance like leaving the
door open for the
perpetrators or giving them access keys, the first appellant was
under no obligation to thwart the commission
of the offences
completely by calling the complainant or law enforcement to stop the
perpetrators on their tracks. The first appellant
did not in a way
associate herself with the criminal conduct of the robbers and hence
there was no need for her to take steps to
show that she was
effectively disassociating herself with their conduct. In Rex v Van
der Merwe
1929 EDL 14
, the court held that a person who knowing of
the intended commission of a crime gives no warning to the
authorities, or the intended
victim, or a person who is present at
the commission of a crime and takes no steps to prevent it, is not
criminally punishable,
unless his omission can be proved to have been
designed with the object of assisting the perpetrator. Simple
approval is not regarded
as participation. There has to be an act or
omission with the intent to associate.
[20]
No such act or intention to associate with the robbers on the part of
the first appellant was proved. I am of the view that
her omission
(by not reporting the potential crime) was not designed with the
subject of assisting the robbers. I am satisfied
from all the
circumstances of this matter that the first appellant's behavior had
no effect of assisting the perpetrators. In
my view, the first
appellant is not guilty of offences. On a proper consideration and
analysis of the record of the proceedings
the correctness of the
trial court's factual findings and its evaluation of the evidence
cannot be sustained. Therefore, this court
is entitled to interfere
and set aside the conviction of the first appellant.
[21]
Therefore, the appeal against the conviction must succeed.
SECOND
APPELLANT'S CASE
[22]
Counsel for the appellants submitted that the trial court erred in
using the statements made by the first appellant against
the second
appellant. In short, that the trial court erred in using the
confession and or admission of one accused (first appellant)
against
his co-accused (second appellant). It was argued that such evidence
is inadmissible against the second appellant. Secondly,
that on the
circumstantial evidence, the State did not prove that the second
appellant was one of the robbers.
[23]
In convicting the second appellant the trial court reasoned as
follows
[6]
:
"In
respect of accused 2, it was alleged or stated by Mr. Tshole at first
that, it was not proved that the Peter that made
the phone call on
the night in question, is accused 2. Once again, the provisions as
explained above with regards to the principles
stated in the Blom
matter, is applicable. Accused 1 gave information with
regards to Mr. Fick and his household to
a Peter. A Peter phones her
at 1 o'clock in the morning, informing her that 'we are in the
house'.
She
is arrested on the very day that the offense [was] committed. With
her assistance and the assistance of Thato, Peter is arrested.
That
Peter, that was arrested, is accused 2. That Peter takes the police
to a firearm of the complainant is found. Now, could there
be any
other peter at play here, except accused 2? I do not think so. The
court finds that Peter that was arrested, is the one
that she
referred to throughout the proceedings.
Furthermore,
to that, the coincidence that this Peter is the one that points out
the hostel where the firearm of the victim is found,
is so great,
that the court cannot find that it is a different Peter. The only
reasonable inference that can be drawn from the
proved facts in this
instance, is that the Peter that was arrested, was indeed the Peter
that robbed the compliance of his properties.
How
else would that very Peter, point out a hostel where the
complainant's firearm is found? Was that just pot luck? It cannot be.
Therefore, I am satisfied that it was proved that it was the same
Peter, accused 2 is the same Peter that featured throughout the
proceedings. There is in fact no evidence to the contrary".
[24]
Thought the
above reasoning is correct in
i
dentifying
the Peter
that robbed
the
complainant as the second appellant, the same reasoning cannot be
used to convict the second appellant. The trial court, in
support of
i
ts
conclusion that this
Peter
"is
the
one
that
the
[first
appellant]
referred
to
throughout
the
proceedings",
relies on
the evidence of the first appellant.
Such
extra-curial
statements
of
the
first
appellant,
as
correctly
agued
by
appellants'
Counsel,
are not
admissible
against the
co-accused, the second appellant
[7]
.
Section 219 of
the CPA
prohibits the confession of one accused being used against another
accused.
Without the
evidence of
the
first
appellant, there are no
other
proved
facts,
except the fact that the second appellant pointed out the firearm,
and or that Thato pointed out the second appellant as
one of the
suspect, from which
one
can
come
to
the
conclusion
that
the
State,
proved
beyond
reasonable
doubt, that
the second appellant is the Peter that robbed the complainant.
In
this
instance, the recorded evidence shows that the trial
court's
factual finding that the evidence placed the second appellant at the
scene of crime is clearly
wrong and
can
be
safely
disregarded
by
this
court
[8]
. This
is
one
of
the
exceptional
circumstances where this court will be entitled to interfere with a
trial
court's
evaluation
of
oral
testimony.
[25]
Having excluded all other evidence against the second appellant, one
now needs to deal with the remaining evidence: the pointing
out. To
cut to the chase one has to consider whether or not the pointing out
of the firearm by the second appellant constitutes
admissible
evidence against the appellant. The trial court did not consider and
or decide this question. It evaluated the evidence
on the assumption
that the pointing out of the firearm by the second appellant
constituted admissible evidence against the second
appellant.
[26]
For reasons
stated herein below, I
am of the
view that the pointing out by the
second
appellant is not admissible evidence against the second appellant in
the
circumstances of this matter. Firstly, logically it does not make
sense that
the trial
court ruled that the written confession by the second appellant was
inadmissible for failing to comply with the constitutional
prerequisites and on the contrary found that
the
pointing out
[9]
by
the same
appellant was admissible
against
him.
Logically,
for
the
same
reason:
lack
of
constitutional
prerequisites,
the
pointing
out
evidence
should have
been
held
to
be
inadmissible.
[27]
Secondly, in the current constitutional era our courts have settled
our law relating to pointing outs. Section 218(2) of the
CPA provides
that evidence may be admitted at criminal proceedings that anything
was pointed out by an accused or any fact of thing
discovered in
consequence of information given by such accused person,
notwithstanding that such pointing out or information forms
part of a
confession or statement which by law is not admissible in evidence
against such accused person. However, in a landmark
decision of S v
Sheehama
[1991] ZASCA 45
;
1991 (2) SA 860
(A) the Appellate Division held that (a) a
pointing out amounts to an extra-curial admission and must therefore
comply with the
admissibility requirements of admissions, and (b)
evidence of a forced pointing out is inadmissible, unless it falls
within the
scope of the exception created in R v Samhando
1948 AD
608.
Subsequently, in S v January
1994 (2) SACR 801
(A) the
Appellate Division held that the
exception created
by Samhando was
inconsistent with section 219A of the CPA, which requires that all
admissions must be made voluntarily before evidence
thereabout is
admissible.
[28]
In the Commentary,
Criminal Procedure Act, Du
Tait et al, at p24 -
66P, commented as follows: "...By overruling a number of
cases... and by making it clear that paintings
out or any other type
of evidence referred to in
s218
could not enjoy any preferential
treatment where, notionally, it amounted to an admission or a
confession, and that the exclusionary
principles set out in
ss217
and
219A
would apply in the normal way to all admissions and confessions,
our court succeeded in removing the sting of the malign provision.
The section has now, too, to be read subject to the Constitution, so
that all the constitutional implications mentioned in the
notes to
ss217 and 219A become applicable to a pointing out that constitutes
either a confession or an admission. It follows, for
instance, that
what was said here about the accused having to be informed of various
rights-such as the right to silence, to be
informed of the
consequences of making an admission or confessions, and to legal
assistance- apply, too, to paintings out".
[29]
In
Motsetse &
Another v S (unreported, ECM, Case No.
55/02, 19
March 2015,
paragraph
42,
the
court
stated
the
following:
"As
for
the
evidence
of
the
pointing out made by the second appellant is concerned, it suffices
to say that these ought not to have been admitted.
I
t
is clear from the evidence that the appellant
was
not
given
sufficient
opportunity
to
secure
the
services
of
an
attorney
when he had clearly indicated that he wanted one before embarking
on
any
procedures
which
may
have
been
construed
as
having
been
self
incriminating. In
my
view this
disregard of the second appellant's constitutional
rights
was
sufficient for the trial
court
to have
ruled
the
pointing out
to
the officer
inadmissible".
I
n
the present
case, the
second
appellant
was
also
not given
sufficient opportunity
to secure
the services of an attorney when he had
clearly
indicated
that
he wanted
one.
Nor was
he warned
of
the
consequences
of making
an
admission
or
confession.
The
circumstances
are
such
that
the
admission of the pointing out evidence would not only render the
trial unfair
[10]
and in
contravention of section 35 of the Constitution or but would involve
the judicial
process
in moral
defilement,
compromise
the
integrity
of the judicial
process
and
dishonour
the
administration
of
justice
[11]
.
[30]
Having found that the pointing out evidence is not admissible, it is
not necessary, for the purposes of this judgment, to make
a finding
on whether or not the pointing out of the firearm by the second
appellant constitute sufficient evidence to convict the
second
appellant on the counts. Now, what is left is the evidence by the
police that the second appellant was pointed out by the
first
appellant's boyfriend as a suspect. Is this piece of evidence enough
to sustain a conviction on any of the counts. The answer
is no. That
alone can never be enough to place the second appellant at the scene
of the crime. It is clear from the trial court
judgment that if the
inadmissible evidence of the first appellant used against the second
appellant and of the pointing out are
excluded, the State failed to
prove its case against the second appellant and he should have been
acquitted. In the premises the
conviction and sentence in respect of
both counts cannot stand.
[31]
In the premises, I make the following order:
a.
The first and second appellants' appeals against conviction succeed.
b.
The first and second appellants' convictions and sentences in respect
of both counts are
set aside.
c.
It is ordered that the first and second appellants be released from
prison immediately.
________________________
H.W
SIBUYI
Acting
Judge of the High Court
Gauteng
D
i
vision
Pretoria
I
agree:
________________________
S.P
MOTHLE
Judge
of the High Court
Gauteng
Division Pretoria
FOR
THE APPELLANTS:
H
Steinberg
Instructed
by:
Legal Aid South Africa
Church Square
Pretoria
FOR
THE RESPONDENT:
B
E Maoke
Instructed
by:
Directorate of Public Prosecution
Gauteng
[1]
2001(1) SACR 1 (CC)
[2]
See Rev Dlumayo 1948(2) SA 677 (A)
[3]
See St Haded and Others
1997(2)
SACR 641 (SCA), at 645E-F
[4]
See St Francis 1991(1) SACR 198 (A), at 204E
[5]
1939 AD
188
, at
202-3
[6]
Record,
at
p230-1
[7]
See S v Litako and Others 2014(2) SACR 431 (SCA), at para 71
[8]
See St Haded and Others 1997(2) SACR 641 (SCA), at 645E-F
[9]
See Record, p230, lines 23-25
[10]
See S v Matlou & another
2010 (2) SACR 342
(SCA), para 36
[11]
See S v Matlou,
supra,
para
30