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[2017] ZAGPPHC 825
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Ncala and Another v S (A684/13) [2017] ZAGPPHC 825 (5 May 2017)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A684/13
DATE:
5/5/2017
REPORTABLE:
YES
/NO
OF
INTEREST TO TOHER JUDGES:
YES
/NO
In
the matter between:
SABELO
NCALA 1
st
APPELLANT
THULANI
ELIAS
MAGABA 2
nd
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
RAUUNGA,
J
1.
This is an appeal against both conviction and sentence. The
appellants and two other accused were charged with four counts in
the
High Court, before Mothle J. They were all legally represented during
the trial as well as the application for leave to appeal.
The appeal
is with leave of the trial court.
2.
The appellants were convicted on 4 December 2012 of the following
counts:
2.1
Count 1: Murder;
2.2
Count 2: Robbery with aggravating circumstances;
2.3
Count 3: Possession of a firearm without a license; and
2.4
Count 4: Possession of ammunition.
3.
On 5 December 2012, they were each sentenced as follows:
3.1
Count 1: 20 years imprisonment;
3.2
Count 2: 15 years imprisonment;
3.3
Count 3: 5 years imprisonment; and
3.4
Count 4: 3 years imprisonment.
The
sentences in Count 2, 3 and 4 were ordered to run concurrently with
an effective sentence of 20 years imprisonment.
4.
The appeal before us is only on behalf of Accused 2 and 4, to whom I
will refer as first appellant and second appellant respectively.
The
first Accused in the trial filed a letter indicating that he is not
proceeding with his appeal. The appeal of the third Accused
was
struck from the roll on the 24 April 2015.
5.
It is common cause that when the trial commenced, the court a quo
explained to the appellants the implications of sections 51(1)
and
51(2) of Criminal Law Amendment Act 105 of 1997 ("the CLAA)").
Further, the appellants and their co-accused pleaded
not guilty to
all the four counts and offered no plea explanation, having elected
to exercise their right to remain silent in terms
of the Constitution
of the Republic of South Africa.
6.
The events that unfolded on the 29 November 2007 leading to the
incident are captured in the evidence of the witnesses who testified
in the trial.
7.
Finkana Rykman Mogotlhwane testified that on 29 November 2007 he was
in the company of the deceased James Ngobeni, who was driving
a
Volkswagen Citi Golf blue in colour, with registration number [V...].
As they were driving around, they picked up the deceased's
girlfriend
one Nomshado and proceeded to the street where Nomshado stayed next
to Engen Garage. The deceased parked the vehicle
on the street. At
that stage he disembarked leaving the deceased and Nomshado in the
vehicle busy talking. While he was standing
outside the vehicle he
saw four boys approaching in their direction. One of them changed
direction and turned right on the side
of the deceased who at that
stage was with Nomshado also outside the vehicle. Three of the boys
came to him and one went to the
deceased. He was standing about five
metres from the deceased when he heard a strange sound of a click.
One of the three boys who
came to him went behind him and the other
two stood further away towards where the deceased was. The boy behind
him pushed him
on the spine with an object which at that time he
thought was a firearm towards the direction of the deceased. He then
heard some
cracking sounds from the direction of the deceased and ran
to the nearby yard. He knocked on the door while the cracking sounds
continued.
8.
It was at that moment that a person came out of the house and as he
joined him on the veranda Mogotlhwane noticed that it was
now silent
and all he could see was the vehicle in which they were travelling
moving slowly down the street until it stopped as
a result of some
electrical cables. He noticed that there was no one in the vehicle.
9.
Mogotlhwane further testified that he and the person that came out of
the house went to the scene and as he approached he saw
the deceased
on the ground with a firearm next to his arm. He saw a wound on the
forehead of the deceased and requested the person
who was with him to
call an ambulance. Thereafter he noticed a police vehicle that had
arrived and at that moment members of the
community as well as
passing motorists were gathering around the scene. According to him
the incident occurred at about 19h30.
10.
He further testified that although it was dark there was sufficient
illumination from the Engen Garage as well as various lights
from the
households in the vicinity. He later was able to identify one of the
assailants at an ID parade which was held on 20 January
2008. He
identified Accused no 1 as one of their attackers and that it was
Accused no 1 who had earlier pointed a firearm at him
from behind.
This is the person that he later saw that evening at the scene lying
on the floor with his trousers covered in blood.
At the time he was
accosted with a firearm he lost his cellphone, a Nokia 3310 which was
later found by the police where the assailant
was lying.
11.
Nomshado Constance Mnguni the deceased's girlfriend, corroborated the
testimony of Mogotlhwane in regard to the evidence as
to how the
incident at the scene unfolded. She further testified that the one
assailant who came to the side where she stood with
the deceased
pulled out a firearm which he pointed at them and demanded their
cellphones and her bag. The assailant demanded car
keys from the
deceased. Soon after that she heard a gunshot but did not see who
fired that shot. She however noticed that their
assailants were
shooting. In the midst of that confusion she saw Mogotlhwane running
to a nearby house and she ran after him. When
she got into the
premises she went to the outside room and hid herself there. She only
came out after she heard people talking
and she was told by one
person from that house that she has been shot. It was at that point
that she realized that she has been
shot on her right hand and her
right thumb was numb and no longer functioning properly. She went
back to the scene and noticed
the deceased was lying down a distance
from the spot where she was standing with him. The vehicle had
shifted from where it stood
and the police had arrived with an
ambulance. She was taken to the clinic. The items that were taken
from her were recovered. At
the identity parade she could not
identify anybody.
12.
Ida Ntshabeleng Masemola testified that on the 29 November 2007 she
and her boyfriend Mzwakhe Mashiloane were at Mzwakhe's home
when at
about 20h00 they heard a knock on the door and Mzwakhe went to open.
This is the witness who earlier in her testimony had
deviated from
her police statement. However, after she was declared a hostile
witness she then admitted that she deposed to the
statement and what
she said is the truth.
13.
She continued to testify that Sabelo, referring to the first
appellant, came into the room. She also observed that there were
other boys outside the house. It would later transpire that the said
people were third Accused and the second appellant, Calvin
and
Thulani.
14.
The second appellant explained to them that they shot a police
officer, referring to the deceased, because they wanted to take
his
vehicle. In her statement she also said that the second appellant
told them that it was the first appellant who shot the deceased.
The
first appellant in turn said that it was the second appellant who
shot the deceased. She further testified that although
she was
assaulted by the police, this did not influence her when she made the
statement to the police. She also witnessed the police
assault the
first and second appellant, Calvin and Mzwakhe.
15.
Mzwakhe Mashiloane, Ida's boyfriend, corroborated Ida Masemola that
the first appellant knocked on the door while they were
sleeping and
requested a key for another room which Mzwakhe handed to him through
the window.
16.
Mzwakhe was also confronted with a statement he made to the police
from which he tried to deviate. In his statement
he had
never said that he was assaulted by the police, this he
only said when he was testifying in court. However,
he went on to
corroborate the evidence of Ida as to what happened on that day
including the fact that Ida, himself, Calvin, the
first appellant and
the second appellant were arrested by the police.
17.
Joseph Shabangu testified that on that fateful night at about 20h00,
Lucky and Calvin arrived and he opened the door for them.
And they
went to sleep. Early in the morning they were woken up by the
police who were looking for Calvin. The police searched
the room and
found the firearm in the room where Calvin and Lucky were sleeping.
When the firearm was discovered he was outside
at the door and did
not see exactly where it was found. He further testified that there
was no firearm in the room before Lucky
and Calvin arrived.
18.
The deceased's uncle one Lesiba Loyd Ledwaba testified that he was
called to identify the deceased as well as the deceased's
property,
being a cellphone, debit cards of FNB and Truworths and other cards
that bore the deceased's name. His evidence was not
disputed.
19.
Lesiba Loyd Ledwaba a Sergeant in the South African Police Service
testified that he and his colleague Constable Kgaladi were
summoned
to the scene of the incident and when they arrived they were alerted
to a wounded person who was hiding in the premises
of a house near
the scene. They went to the premises of the house and found the
person hiding behind a dustbin covering himself
with plastic. When
Kgaladi removed the plastic the person asked not to be shot and
spontaneously said that it was Sabelo who shot
the policemen, i.e.
the deceased. They then informed the person of his rights and took
him to the ambulance. He identified the
person as Accused no 1,
Thabang Joseph Ramasehla, who was still bleeding when they took him
into the ambulance. It would later
transpire that accused no 1 is the
person that was shot by the deceased in a tight that ensued earlier.
20.
Daniel Moerane Kgaladi corroborated Sergeant Ledwana in his
testimony. He further said that when they questioned Accused no
1 he
said that there were four of them and they wanted to take the
deceased's vehicle. He also testified that he joined the
search for
the three other suspects and at Dennilton they found the first and
second appellants. The two appellants were arrested
by Lieutenant
Colonel Ledwaba. calvin, Accused no 3 was arrested by Captain Msiza
at a different house nearby. During the arrest
of the first and
second appellants they found the deceased's wallet as well as his
cards on the premises. Both Sergeant Ledwaba
and Constable Kgaladi
denied that the accused were assaulted.
21.
Captain Msiza testified that during the arrest of Accused no 3 he
recovered a firearm and during the arrest of the first and
second
appellants Lieutenant Colonel Ledwaba recovered a firearm. captain
Raphale Kasage corroborated the evidence of captain Msiza.
The
evidence of Captain Msiza was also corroborated by that of Lieutenant
Colonel Ledwaba. Constable Penwell Nhlapo was responsible
for the
collection of exhibits including the two firearms and ammunition
which he sent to ballistics.
22.
The state also called two ballistic expert witnesses to testify on
the two firearms and the projectile. Lieutenant carlo Malan
testified
that from the 10 December 2007 to 31 December 2007 the exhibits were
kept under lock and key. Whereas Captain Zacharia
Makola testified
that the firearm found in the room where the two appellants had been
sleeping is the one that discharged the bullet
at the scene of the
crime.
23.
It must be mentioned that earlier during the trial, a
trail-within-a-trial was held and that judgment appears on the
record.
It must also be mentioned that the application for the
discharge of Accused no 1 in terms of Section 174 of the Criminal
Procedure
Act was refused.
24.
There is no need to repeat the evidence of Accused no 1, which is on
record, because he was not before us. However, he put himself
on the
scene in that he testified that when shots were fired he fled to the
nearby house and hid himself there. He realized that
he was shot in
the hand. He did not know the first appellant nor did he tell the
police that it was the first appellant who shot
the deceased.
25.
It is however prudent to note that Accused no 1's witness one
Duduzile Mahlangu,
inter alia,
testified that on 29 November
2007 at about 20h00 she heard a shot being fired and saw a car
speeding on top of a person. She also
saw the police arrest Accused
no 1 who was hiding behind a dustbin. She confirms that there were
lights illuminating the scene
of crime. However the evidence of the
second witness for Accused no 1 is not helpful.
26.
The first appellant testifying on his behalf said that on the 29
November 2007 he was at home in the company of his younger
brother
who was 12 years of age at the time. At about 19h00 it was dark and
he left home to a place called Sobanto which is a distance
away from
his home. When he returned at about 20h00 he realized that the house
was locked. He knocked on the window of the house
and his cousin
Mazwandile gave him the key to an outside room. He then saw two boys
entering the premises one of them was Christopher.
He agreed to give
them a place to sleep on condition they leave in the
morning. The second appellant is
the other
boy who was in the company of Christopher, he did not
know the second appellant at that time.
He slept in a separate room
at the back of the main house with his brother.
27.
While they were asleep the police arrived and kicked the door open
and entered the room. This was the morning of 30 November
2007. The
police assaulted him as well as Christopher and the second appellant.
The police said they were looking for firearms.
After the police
searched the house he did not see any firearms and it was only when
they were at the police station when the police
told him that they
found a firearm at his parental home. He was made to sign a document
at the police station but the contents
thereof were not explained to
him. He denied under cross examination that he possessed a
firearm. He also denied knowledge
of a police wallet that was found
on the premises of his home. He was further assaulted by Captain
Tswai because he was forcing
him to make a statement to implicate the
other accused and himself.
28.
Accused no 3 testified that he was arrested by the police on the 30
November 2007 at Jabu's parental home. The police dragged
him to the
outside of the house and assaulted him. He only met the other accused
at Siyabuswa the following day i.e. Accused no
1 as well as the first
and second appellants. He did not see any firearm that was recovered
by the police in the room where he
slept. The rest of his evidence is
on record and as Accused no 1, he too was not before us when the
appeal was heard.
29.
The second appellant, Thulani Magaba testified that on 29 November
2007, he was at Motete in the company of Christopher, whereafter
they
proceeded to Dennilton to Christopher's girlfriend's place. They
later proceeded to the first appellant's place who offered
them a
place to sleep in a separate room. In the early hours of the
morning the police arrived and woke them up. When they
were taken
outside the room they found the first appellant on the ground, who
was beaten up by the police. The police demanded
a firearm but he did
not know anything about it. A firearm was shown to him the following
day at Dennilton police station. The
police told him that the firearm
was found where they were sleeping.
30.
Christopher Dingane Mvelo corroborated the evidence of the second
appellant with the exception that certain contradictions were
identified in their testimonies. This include amongst others, when
they went to Dennilton Christopher testified that they took
nappies,
milk and clothes. The second appellant testified that milk was bought
later after they had delivered other items. When
they arrived at
Christopher's girlfriend's place, the second appellant testified that
they found the girlfriend and the baby there
and stayed there for a
while, while Christopher testified that when they arrived he left the
second appellant somewhere and went
to the house alone. Christopher
testified that after his girlfriend had arrived he stayed there for
two hours while the second
appellant was at the shops and he later
joined him there. The second appellant on the other hand testified
that throughout he was
in the company of Christopher even when they
went to go and buy milk together.
31.
The issues pertaining to assault on the appellants and their
co-accused including the question of the pointing out and the making
of statements were dealt with by the Court a quo in its judgment in
the trial-within-a-trial, as well as in the main trial. Finally,
the
court a quo decided these issues in favour of the appellants and
their co accused. This matter must be left to rest.
32.
It is trite law that the state is required to prove its case beyond
reasonable doubt and that in deciding whether such onus
has been
discharged or whether there is reasonable doubt in which case the
accused, would be entitled to an acquittal, the trial
Court must
"weigh up all the elements which point toward the guilt of the
accused against all those which are indicative of
his innocence,
taking proper account of inherent strengths and weaknesses,
probabilities and improbabilities on both sides and
having done so,
to decide whether the balance weights so heavily in favour of the
state as to exclude any reasonable doubt about
the accused's guilt".
S v Chabalala
2003 (1) SACR 134
(SCA) at 1391 - 1400. Put
differently, a court does not base its conclusion, whether it be to
convict or to acquit, on only part
of the evidence. The conclusion
which it arrives at must account for all the evidence - S v Van der
Meyden
1999 (1) SACR 447
(W) at 449 h.
33.
Counsel for the appellant seem to harp on the pointing out and
statements made by the first and second appellants which were
later
ruled inadmissible by the Court a quo in its judgment. These aspects
were properly distilled in the assessment of the evidence
and the
impact of the assault on the appellants by the police. The Court a
quo also dealt with the issue pertaining to the statement
made by
Accused no 1 which evidence cannot be imputed to the other accused.
The Court a quo correctly relied on the balance of
the evidence
tendered by state witnesses as well as the appellants themselves.
34.
Importantly, the state avers common purpose in its summary of
substantial facts, which forms part of the indictment. Snyman
Crirminal Law 4ed at 261, points out that "the essence of the
doctrine is that if two or more people, having a common purpose
to
commit a crime, act together in order to achieve that purpose, the
conduct of each of them in the execution of that purpose
is imputed
to the others". In practice the doctrine finds application in a
variety of crimes other than murder and these include
treason, public
violence, robbery, housebreaking, unlawful possession of a firearm,
assault, theft and fraud
Snyman (supra)
at 262. This doctrine was extended and confirmed in
S v Mgedezi
1989 (1) SA 687
(A) and Thebus and Another v The State
2003 (6) SA 501
(CC).
35.
I have no doubt in my mind that in the instant case, the appellants
acted in common purpose because, they were present on the
scene; they
were throughout making common cause with the group because they were
travelling in the same vehicle including the gunmen,
and they acted
in association with them by robbing the victim and killing the
deceased. Moreover, Accused no 1 placed the appellants
on the crime
scene when he revealed their identities to the police. It is also
important to mention at this stage that the Court
a quo correctly
concluded that what Accused no 1 said to the police was not an
admission but a denial. However, in trying to exonerate
himself from
the commission of the crimes, he revealed the identities of the other
assailants and there implicating them in the
commission of the
crimes, which confirmed participation and association. The Court a
quo succinctly dealt with this aspect.
36.
It seems to me that the Court a quo only ascribes the defence of
alibi to the second appellant. However, the record reveals
that the
first appellant raises a total denial of any knowledge of the murder
and robbery. This to me is tantamount to an
alibi because he
refused to place himself on the scene. Similarly the defence of alibi
applies to him as well. Counsel for the
appellant when asked about
the late disclosure of an alibi did not respond.
37.
The rule of evidence that the late disclosure of an alibi affects the
weight to be placed on the evidence supporting the alibi
is one which
is well recognized in our common law - R v Mashelele
1944 AD
571.
As such, it is a law of general application. However, like all
law, common law must be consistent with the Constitution.
38.
It has been held by the Constitutional Court that the late disclosure
of an alibi is one of the factors to be taken into account
in
evaluating the evidence of the alibi. Standing
alone
it does not justify an inference of guilt. Secondly, it is a factor
which is only taken into consideration in determining
the weight to
be placed on the evidence of the alibi. The absence of a prior
warning is, a matter which goes to the weight to be
placed upon the
late disclosure of an alibi. Where a prior warning that the late
disclosure of an alibi may be taken into consideration
is given, this
may well justify greater weight being placed on the alibi than would
be the case where there was no prior warning.
In all the
circumstances, and in particular, having regard to the limited
use
to which the late disclosure of the alibi is put, the Court found
that limitation to
alibi
defence is justifiable under section 36(1) of the Constitution. The
failure to disclose an alibi timeously is therefore not
a neutral
factor. Depending on the circumstances of each case, it may have
consequences and can legitimately be taken into account
in evaluating
the evidence as a whole. See Thebus (supra) paras [65], [67] and
[68].
39.
In the first place, the version of the first appellant is that on the
29 November 2007, he was at home and only left at 19h00
for Sabantu.
He went back home at about 20h00 before proceeding elsewhere.
According to him this was a clear indication that he
was not on the
scene that fateful evening because the incident occurred at or about
18h00.
40.
Secondly, the first appellant denies that he was in the company of
Accused no 1 at the crime scene. He also denies that he was
at the
scene at all. Evidence of state witnesses points to the fact that the
first appellant was on the scene whether through direct
evidence or
inferentially. Although direct prior warning was not given, the
questioning by the prosecutor about his whereabouts
on that day was a
clear warning for him to disclose the truth (why the firearm found in
his possession was linked to the commission
of the murder is proof
that he was on the scene). This also applies to the second appellant
who also was questioned about his presence
at the crime scene. There
is no need for this Court to deal with this aspect in detail because,
the Court a quo dealt with in its
judgment.
41.
In my view, there are three sets of evidence presented by the state
in support of its case for the conviction of the appellants.
The
evidence of Finkana Rykman Mogotlhwane is corroborated by Nomshado
Constance Mnguni regarding the attack on them and the killing
of the
deceased as well as the recovery of the stolen items. Their evidence
pertains mainly to what happened at the scene of crime.
The Court a
quo correctly accepted the evidence of these two witnesses as being
credible.
42.
The evidence of Ida Ntshabeleng Masemola and Mzwakhe Mashiloane is
relevant to the information they got from the first appellant
concerning the killing of the deceased, that "he was
killed because they wanted to take his vehicle". When
the first
appellant was talking to Mzwakhe, Ida overhead the conversation that
is the reason she corroborated Mzwakhe in his evidence.
Their
evidence is also relevant to the place where the appellants were
found. Whereas the evidence of Joseph Shabangu is relevant
to the
place where Accused no 3 was found. Although Ida and Mzwakhe during
the trial attempted to deviate from the portion of their
statements
which implicated the Accused, mainly the second appellant, the Court
a quo however correctly accepted their evidence
as being credible and
reliable.
43.
The third set of evidence pertains to the police officers inclusive
of the experts who testified about the arrest of the appellants
and
their co-accused. The evidence of the experts in
particular the ballistic experts,- in
the
main links, the appellants to the commission of the
offences. The Court a quo correctly rejected the
version of the
appellants regarding their alibi defence and accepted the
overwhelming evidence of the state that they are implicated
in the
commission of the offences. Both of them were found in possession of
a firearm which was directly involved in the killing
of the deceased.
They were also linked to the commission of the crimes through the
doctrine of common purpose. They were also found
in possession of the
deceased's bank cards and wallet.
44.
Lies can generally be used to discredit the accused's testimony but
not to infer guilt.
In
this regard a distinction can be drawn between 'credibility lies' and
'probative lies'. See an article by B. C. Naude: "The
Probative
value of Post-offence Conduct Evidence" (2012) Vol 332 Orbiter
320 at 330.
45.
In Zonette V R [2000] 200 [CLR 238] Kirby J explains the difference:
"The
former are said to be those which, according to their content, affect
the credibility of the accused's evidence and thus
the weight which
the jury may give to the other testimony of the accused. In this
sense, a conclusion that the accused has lied
upon one peripheral to
the offence charged, may make the jury scrutine with more care
(perhaps skepticism) other testimony
given by the accused. It might,
in this way, contribute indirectly to rejection of the accused's
version of critical events and
the acceptance of that pronounced by
the prosecution. Probative lies, on the other hand, are those
which naturally indicate
guilt. This is a "hard test"
precisely because it is rare that a lie about a particular matter
will be so crucial as
of itself, if proved, to establish directly
guilt beyond reasonable doubt."
46.
The Court a quo made a credibility finding in the contradictions in
the evidence of first appellant and second appellant.
These contradictions are already on record in this judgment and
there is no need to regurgitate same. Save to say that their
contradictions amount to lies, which may be classified as
'credibility lies'.
47.
There is overwhelming evidence on record by the witnesses of the
state that a firearm was retrieved where the first appellant
was
sleeping which firearm is linked to one of the shells that was found
at the scene of the crime and that firearm was discharged
at the
scene of the crime. In addition to that, the wallet of the deceased
containing his bank cards and identity card were found
on the
premises where the first appellant lives. This is the same place
where the second appellant was found in the company of
the first
appellant. To argue otherwise, will be an attempt to skew the proven
facts. Toe submission by the appellants cannot be
sustained.
48.
This accords with the decision in the oft cited case of R v Blom
1939
AD 188
, in which the Appellate Division (as it then was) set out two
cardinal rules in relation to inferential reasoning. Toe first is
that the inference sought to be drawn must be consisted with all the
proved facts and should be such that they exclude every reasonable
inference save the one sought to be drawn. These two cardinal rules
were followed in deciding the guilt of the appellants in this
case.
49.
It is trite that in the absence of demonstrable and material
misdirection by the trial Court, its finding of the facts are
presumed to be correct and will be disregarded if the recorded
evidence shows them to be clearly wrong. When asked to point out
to
the Court if there are any material misdirection in the judgment of
the Court a quo, Counsel for the appellants conceded that
there are
none.
50.
Having considered all the components and having regard to the
strength and weaknesses, probabilities and
improbabilities
on both sides, in the light of the
judgment of the Court a quo, I am convinced that there are no
material misdirections
in its findings. In my view the Court a quo
correctly found that the state proved its case beyond a reasonable
doubt.
51.
As appears on the record, the appellants and their co-accused were
each sentenced to 20 years, 15 years, 5 years and 3 years
imprisonment on count 1, 2,3 and 4 respectively. When counsel for the
appellants was asked if indeed she is pursuing the appeal
on
sentence, her submission was that the appellants would rather
withdraw the appeal against sentence. In the light of this
submission,
there is no need to interfere with the sentence imposed
by the court a quo.
52.
In the circumstances, I make the following order:
52.1
Appeal against both conviction and sentence is dismissed.
_________________
T.J
RAULINGA
JUDGE
Of THE GAUTENG DIVISION, PRETORIA
I
agree
_________________
R.G
TOLMAY
JUDGE
Of THE GAUTENG DIVISION, PRETORIA
I
agree
_________________
N.V
KHUMALO
JUDGE
Of THE GAUTENG DIVISION, PRETORIA