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[2016] ZANCHC 54
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Mocumi v S (CA&R66/2016) [2016] ZANCHC 54 (15 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno
/ Case number:
CA
& R 66 /2016
Datum
aangehoor/Date heard:
13
/ 07 /2016
Datum
gelewer/Date delivered:
15
/ 07 /2016
In
the matter between:
THATO
ASHLEY LENNON MOCUMI
Appellant
and
THE
STATE
Respondent
Coram:
Erasmus,
AJ
JUDGMENT
ON APPEAL : BAIL APPLICATION
ERASMUS,
AJ
[1] The appellant
lodged an appeal to this Court against the judgment and order of the
Magistrate, Galeshewe, Mr. Blaauw, in which
the application for the
release of the appellant on bail was refused.
[2]
The appellant was arrested on 10 May 2016. The bail application
commenced on 16 May 2016 and concluded on 24 May 2016 with the
Magistrate refusing bail.
[3]
The appellant had legal representation throughout the bail
proceedings.
[4]
In terms of the annexure to the charge sheet, it appears that the
appellant faces a charge of contravening s 15 of Act 32 of
2009
(statutory rape). It was, however, common cause during the bail
hearing that he faces a charge of contravening s 3 of
Act 32 of 2009
(rape), allegedly committed in respect of a 13-year old girl and that
this offence falls under Schedule 6 of the
Criminal Procedure Act, 51
of 1977 (‘the CPA’). From the record it also
appears that the magistrate accepted
this to be the correct position,
explaining it as such to the appellant and adjudicating the bail
application on that basis.
[5]
Bail proceedings in respect of offences listed in Schedule 6 are
governed by the provisions of s 60(11)(a) of the CPA.
In terms
thereof “
the
court shall order that the accused be detained in custody until he or
she is dealt with in accordance with the law, unless the
accused,
having been given a reasonable opportunity to do so, adduces evidence
which satisfies the court that exceptional circumstances
exist which
in the interests of justice permit his or her release”.
[6]
S 60(11)(a) sets out two requirements which an applicant has to
establish on a balance of probabilities. The applicant
must
show the existence of exceptional circumstances and that such
exceptional circumstances, in the interest of justice, permit
his
release on bail. The second enquiry only commences once the
applicant has established the existence of exceptional
circumstances.
[1]
[7]
It is now trite that an
applicant
in a bail application is given a broad scope to establish the
requisite circumstances, whether they relate to the nature
of
the crime, the personal circumstances of the applicant or
anything else that is particularly cogent.
It
is not possible to provide a list of possibilities which will
constitute exceptional circumstances. The personal circumstances
of
the appellant, individually or cumulatively viewed, can constitute
exceptional circumstances. It is also trite that an
applicant
in bail proceedings can advance a weak case against him in an effort
to show exceptional circumstances.
[2]
In support of the appellant’s bail application, an affidavit
was read out and handed in as Exhibit ‘A’.
No oral
evidence was adduced. The appellant's statement contained the
following averments which are contended to be
of relevance in
the discharge of the onus:
7.1
He is 33 years old and single;
7.2
He has 3 children, all residing with their respective mothers and he
is responsible for the maintenance
of these children;
7.3
He is gainfully employed and earns approximately R16 000 per month;
7.4
He has a fixed abode and maintains a close relationship with his
family;
7.5
He has no previous convictions and there are no pending cases against
him;
7.6
The appellant intends pleading not guilty. He alleged that the
State did not have a strong case
against him. This
contention was based on the following:
7.6.1
He alleged that he and the complainant established a romantic and
sexual relationship, after having met her at
a tap near their
respective homes. The initial friendship was initiated by the
complainant when she had invited him as a friend
on Facebook.
7.6.2
On the day of the alleged rape, 8 May 2016, he and the complainant
had an appointment that she would meet him
at his shack at 20:00.
She had sent messages stating that she would not be able to make it
and later sent a message that
her mother intends leaving the house.
He sent a message at 21:10 inviting her to his place as her mother
would not be at
home. The complainant arrived at 23:00.
[3]
They discussed several issues, amongst others her schooling and
background.
7.6.3
The complainant informed him that she had failed grade 11 and that
she would be turning 19 on 6 October 2016.
During a discussion
of their age gap, the complainant informed him that she was indeed
older than 17 years and that she had had
romantic and sexual
relationships in the past.
7.6.4
During the night of 8 May 2016 the appellant and complainant engaged
in consensual sexual activities.
7.7
The appellant further dealt with the provisions of s 60(4)(a) to (e)
of the CPA and denied the likelihood
of any of the circumstances set
out in the subsections occurring. He stated pertinently that he would
not a) pose a danger to the
public, b) evade his trial, c) interfere
with witnesses or evidence, and d) that his release would not
jeopardise the functioning
of the criminal justice or bail system or
disturb public peace or order.
7.8
In respect of s 60(9) of the CPA the appellant submitted that the
interests of justice do not require
his incarceration for purposes of
his trial.
7.9
In respect of s 60(11)(a) of the CPA he submitted that the interests
of justice would be served by him
being released on bail and that the
cumulative effect of these circumstances rendered them 'exceptional'
for the purpose of justifying
his release on bail. These special
circumstances alleged to exist are the following:
7.9.1
The State does not have a case against him as he does not believe
that he had committed a schedule 6 offence;
and
7.9.2
He stands to be severely prejudiced by his incarceration,
particularly when having regard to the long delay prior
to the matter
going to trial as well as the long delay in receiving the results of
the forensic analyses.
[8]
The respondent adduced the oral evidence of both the investigating
officer and the mother of the complainant. From the
evidence it
appears to be common cause that the complainant was indeed 13 years
old at the time of the commission of the offence.
It is further
common cause that the appellant had had sexual intercourse with the
complainant.
[9] The investigating
officer testified from the contents of the police docket and
contended that the version of the complainant
appears to substantiate
a charge of rape. I shall deal more fully with the version of
the complainant later. The complainant
was examined by a
medical practitioner. From the form J88, as read out by the
investigating officer, it appeared that the
doctor had noted swelling
of the genitals and signs of labial and hymenal penetration. It
is further common cause that the
shack of the appellant is in close
proximity to that of the mother of the complainant. The
community in that area has expressed
their revolt at what had
happened and there have been threats made to kill the accused and to
burn his shack.
[10]
During cross-examination the investigating officer conceded that
there was no risk that the appellant would evade his trial
and
furthermore that there was no evidence of any likelihood that he
would commit a Schedule 1 offence if released on bail.
She
requested that, should the Court release the appellant on bail,
conditions be imposed that he report to the investigating officer
on
a daily basis and further, that the appellant and his family be
ordered not to interact with the complainant and/or her family.
[11]
The version of the appellant was put to the investigating officer and
she was specifically asked to estimate the complainant’s
age,
she refused to speculate and had made no comment on the physical
appearance of the complainant. Neither the contents
of the J88
pertaining to the doctor’s observations with regard to the
complainant’s physical development, height and/or
mass nor any
other evidence in this regard was presented to court to counter the
appellant’s version that he had truly believed
the complainant
to be older than 17 years. She also refused to comment on the
merits of the case against the appellant.
[12]
The mother of the victim testified about the events of the night of
8/9 May 2016 and certain events after the arrest of the
appellant.
12.1
She stated that the complainant did not have a cell phone but had
made use of hers. She had been under the impression
that the
complainant had been outside to relieve herself, but confirmed that
upon the complainant’s entering of the house,
she had
demanded to know where she had been and had threatened to have
‘wineja tsotsi’, which appears to be some vigilante
crime
prevention group, called. The complainant had then asked for
forgiveness and the mother wanted to know what for.
12.2
The complainant’s mother denied the appellant’s version
of the events of the night of 8 May 2016.
She also testified
that she had met with the appellant on three occasions while she was
searching for the complainant during the
night of 8 and 9 May 2016
and that he, at some stage, had wanted to know what she intended
doing once she had found her child.
12.3
The mother also testified that she had been approached by persons
purporting to be relatives of the appellant on
several occasions.
On one of these occasions they wanted the two families to discuss the
issue. On another occasion
the family apologised to the mother
of the complainant and then wanted to know which school the
complainant was attending.
They also requested her to hand the
complainant over to them as they did not trust the report compiled at
the Kimberley Hospital
and therefore wanted the child to be ‘checked’
at the Gariep Hospital. On another occasion she was approached
by two males who had offered, through other ladies present at the
mother’s house, to pay an amount of R10,000.00 if the case
was
to be withdrawn.
[13]
It appears that
the
learned magistrate had found
that, although the personal circumstances of an applicant
cumulatively considered, might be regarded as exceptional
circumstances,
the circumstances of this appellant cannot be
considered to be exceptional. He further found that the release
of the appellant
would not to be in the interest of justice. He
based this on the provisions of s 60(4)(c) and 60(4)(e), read with s
60(7)
and 60(8A) of the CPA and his
His
reasons
appear to be the following:
13.1
The complainant lives in close proximity to the appellant and there
is evidence to suggest that there has already been
intimidation
and/or attempts to influence the mother of the complainant.
13.2
The appellant is 33 years of age and the complainant a mere 13 years
and can thus be easily influenced.
13.3
The release of the appellant will disturb the public order or
undermine the public order and/or undermine the public
peace or
security in light of the evidence which had been led of threats
having been made to the appellant and his property.
[14]
In his Heads of Argument, Adv. Nel, on behalf of the appellant,
submitted that the learned magistrate misdirected himself by
adjudicating the bail application on the basis that a Schedule 6
offence had been committed, whilst the annexure to the charge
sheet
pertained to a Schedule 1 offence in terms of which there would then
have been no onus on the appellant. Given the
fact that it was
common cause between the State and defence that the charge was rape,
he abandoned this point, save in as far as
he argued that the
annexure to the charge sheet, as was completed by the prosecutor
before the bail proceedings commenced, must
be considered relevant
when the strength of the respondent’s case is considered.
Ms.
Ilanga submitted that the framing of the charge sheet was a
bona
fide
error
by the prosecutor. I do not agree. The charge sheet, one
must assume, was properly completed and annexed based
on evidence
contained in the case docket. I agree with Mr. Nel that it is a
relevant factor when considering the relative
strength of the case
against the appellant.
[15]
I am satisfied that for purposes of this appeal the matter should be
approached in terms of s 60(11)(a) of the CPA, as was
done before the
court
a
quo.
The
issue of the charge against the appellant not falling within schedule
6 was never raised before the court
a
quo.
[16]
Mr. Nel then proceeded to argue that the learned magistrate was wrong
in finding that the appellant had not established
exceptional
circumstances, given the favourable personal circumstances of the
appellant and the fact that the State does not have
a strong case
against the appellant, especially so in respect of a charge of rape.
[17]
In respect of the learned magistrate’s finding based on s
60(4)(c) of the CPA , Mr. Nel also submitted that the
magistrate had
misdirected himself in finding that there were attempts at
intimidating and/or influencing the mother of the complainant
and
attributing those to the appellant, as the appellant had no knowledge
thereof. In respect of the finding based on s 60(4)(e)
of the
CPA, Mr. Nel submitted that threats by vigilante groups could not and
should not be allowed to influence a court when considering
bail.
S 60(4) requires exceptional circumstances to be present and if so
found to exist, must be weighed against the provisions
of s 60(9).
The fears of the investigating officer were merely based on
possibilities and that those can be addressed by
setting proper bail
conditions. He referred to
S
v Swanepoel
[4]
where
Hatting J stated that the possibility or suspicion of such events
occurring is not enough, and that it has to be found probable
that
such events will occur.
[18]
Mr. Nel further submitted that the magistrate did not, after making
the findings in respect of s 60(4)(c) and(e), apply
the provisions of
s 60(9) of the CPA, as he had not weighed the interest of justice
against the right of the appellant to his personal
freedom and the
prejudice he was likely to suffer if he was to be detained.
[19]
Adv. Ilanga, on behalf of the respondent, submitted that the learned
Magistrate was correct in finding that the appellant
had not
established exceptional circumstances and submitted that the State
indeed has a strong case against the appellant.
It was for the
appellant to prove, on a balance of probabilities, that there will be
an acquittal.
[20]
Ms. Ilanga further submitted that the magistrate did not misdirect
himself in the application of the provisions of s
60(4) and was
correct in refusing bail. In respect of ss (4)(c), read with s
60(7), it has been established that the
appellant is familiar
with the identity of the witnesses and with him living in close
proximity to the complainant, increases the
likelihood of
interference and intimidation by the appellant’s family.
In respect of ss (4)(e), read with s 60(8A),
she
submitted that the crime induced a sense of shock in the community
and that it has been shown that there are threats of violence
against
the appellant and his property.
[21]
In terms of s 65(
4)
of the CPA the court of appeal shall not set aside the decision
against which the appeal is brought, unless such court or judge
is
satisfied that the decision was wrong. In such event the court
or judge shall give the decision which in its or his opinion
the
lower court should have given.
With reference to s 39(2) of the Constitution of the Republic
of South Africa, 108 of 1996 (‘the Constitution’),
this
section must be construed in a manner which does not unduly restrict
the ambit of an Appeal Court’s competence to decide
whether the
lower court’s decision to refuse bail was ‘wrong’.
[5]
[22]
A
n
applicant in bail proceedings is burdened with the onus to adduce
evidence showing something substantially out of the ordinary
to be
established before bail will be granted.
[6]
Although an applicant can adduce evidence by means of an affidavit,
such evidence might prove difficult to satisfy/convince
a court that
exceptional
circumstances
do
exist
.
[23]
In this instance the appellant attempted to discharge his onus and
refute the State’s case based upon an affidavit
which was not
open to be tested under cross-examination.
[7]
The contents of the affidavit contained details pertaining to the
defence of the appellant and required the respondent to counter
the
allegations by presenting evidence. It is important in this
instance whether the appellant had successfully challenged
the merits
of the case against him.
[24]
It is common cause that the appellant, a 33 year old man, had
intercourse with the complainant who is only 13 years old.
It
appears that there was swelling to the genitals of the complainant
when she was examined approximately 12 hours after the incident.
When
evaluating
the facts in a bail application, it should be borne in mind that
there is a fundamental difference between the objective
of bail
proceedings and that of the trial.
There
are certain factors that do tend to tilt the probabilities in favour
of the appellant’s version, casting some doubt
on the State’s
case.
24.1
The appellant has shown, on a balance of probabilities that the
complainant had invited him on Facebook and that they
had become
friends. According to him this friendship developed into a
relationship and eventually resulted in consensual sexual
intercourse.
24.2
There are aspects of the complainant’s version, as placed on
record by the investigating officer, which favour
the appellant’s
version and might cast some doubt on the charge of rape if presented
during the trial
.
24.2.1
During the night in question the complainant had left their shack to
defecate and she saw the appellant at the communal
tap. He
called out to her and she approached him. After a
while she went back to the shack where she and
her mother stayed.
Her mother wanted to know where she had been as she had been looking
for her. The complainant did not
respond and her mother threatened
that she would call one “tsotsi”. She ran out of
the shack, fleeing, because
she feared that her mother would call
“tsotsi”. She ran up the road and stopped.
While standing there,
the appellant came to her and requested her to
accompany him to his shack until her mother had calmed down.
She complied.
24.2.2
At the shack of the appellant, the complainant went to sit on the
appellant’s bed. He was busy doing laundry.
The
complainant fell asleep and awoke when she felt her panty and pants
being pulled down by the appellant. She tried to
stop him and
told him that her mother wanted her to continue with her schooling
and to only indulge in sexual activities after
completing matric.
The appellant informed her that he was not going to hurt her and
proceeded to have intercourse with her.
She shouted but nobody
could hear her. After the rape the appellant went outside to
smoke and she got dressed.
Before she fell asleep again, the
appellant had locked the door of the shack as well as the burglar
door and had left. He
only returned after the sun had risen.
He told her to go back to her shack as there were police vehicles in
the vicinity
of the complainant’s house. She returned to
their shack and informed her mother, who by then was trying “to
trace
her up” to find out what had happened to her.
24.2.3
There is no objective evidence to show that the complainant had tried
to call for help or attempted to
attract attention. Her mother,
who had spent the night looking for her and knocking on doors of
shacks in the vicinity, could
not find her nor could she hear her.
[25]
In the light of the version of the appellant, read with the version
of the complainant and her mother, the absence of
any averments or
evidence pertaining to the physical appearance of the complainant on
behalf of the State in the face of the specific
defence raised by the
appellant and the investigating officer’s reluctance to express
an opinion on the strength of the case,
I am of the view that the
appellant has succeeded in casting doubt on the State’s case.
This factor, together with
the favourable personal circumstances of
the appellant, constitutes exceptional circumstances. The issue
that remains to
be answered is whether such circumstances, in the
interests of justice, permit the appellant’s release on bail.
[26]
In
a bail application the inquiry is not really concerned with the
question of guilt and is only relevant to the extent to which
it may
bear on where the interests of justice lie in regard to bail.
The focus at the bail stage is to decide whether the
interests of
justice permit the release of the accused pending trial. This
entails mainly protecting the investigation and
prosecution of the
case against hindrance.
[27]
The primary purpose of arrest and detention is to ensure that a
person who allegedly committed a crime, will appear in court
at his
or her trial. The purpose of bail on the other hand is the
security offered in return for release from detention,
subject to the
accused’s appearance at his or her trial. Release on bail
is a means of giving effect to the presumption
of innocence contained
in s 35(3)(h) of the Constitution and ensuring that a person accused
of having committed a crime, stands
trial. Mahomed AJ (as he
then was) stated the following in
Acheson
[8]
“
An
accused person cannot be kept in detention pending his trial as a
form of anticipatory punishment. The presumption of the law
is that
he is innocent until his guilt has been established in Court. The
Court will therefore ordinarily grant bail to an accused
person
unless this is likely to prejudice the ends of justice.”
[28]
In deciding whether the interests of justice permit the release on
bail the court must consider the considerations mentioned
in s
60(4)(a)-(e) of the CPA. A court hearing a bail application has
to bring a reasoned and balanced judgment to bear in
an evaluation in
which the liberty interests, namely the personal freedom of and
possible prejudice to the arrested person, are
given the full value
afforded by the Constitution.
[9]
[29]
Ordinarily the State will be required to show the probability of the
events envisaged in s 60(4)(a)–(e) of the CPA occurring
and
there
is
a burden on the prosecution to adduce evidence or furnish information
to show the likelihood that circumstances, as envisaged
in s 60(4),
exists. The situation is different where s 60(11)(a) is
applicable.
[10]
[30]
In my view the appellant has set out in his affidavit that the events
envisaged in s 60(4)(c) and (e) will not occur.
The evidence
presented on behalf of the respondent, point to a possibility that
witnesses might be influenced or intimidated and/or
further that his
release will disturb the public order or undermine the public peace
or security.
[31]
S 60(4)(c) must be read in conjunction with s 60(7). Although
the appellant and complainant know one another, both
the complainant
and her mother have already given statements to the police and the
investigation has been completed (save for the
outstanding forensic
report). The appellant does not have access to any evidentiary
material that could be concealed or destroyed.
The mother had
resisted all attempts of the appellant’s family at influencing
her. Furthermore, there was no evidence
that the appellant was
even aware that his family had embarked on the steps referred to by
the mother of the complainant.
Even if there was a likelihood
of such events occurring, these concerns of the State can be
addressed by setting enforceable bail
conditions.
[11]
[32]
S 60(4)(e) provides that the interests of justice do not permit the
release from detention where,
in
exceptional circumstances
,
there is the likelihood that the release on bail will disturb the
public order or undermine the public peace or security.
It must
be read in conjunction with s 60(8A). Although there is
evidence that there had been threats by the community
against the
appellant that might jeopardize his safety, I do not deem these
exceptional. Even if I accept that there is evidence
in respect
of the factors set out in ss (8A)(a) – (e), refusal of bail on
these grounds should be approached with caution
[12]
and must still be weighed against the consideration enumerated in s
60(9).
[13]
There is no
indication in the judgment of the court
a
quo
that
due consideration had been given to ss (9).
[33]
S 60(9) reads as follows:
“
In
considering the question in subsection (4), the court shall decide
the matter weighing the interests of justice against the right
of the
accused to his or her freedom and in particular, the prejudice
he or she is likely to suffer if he or she were to be
detained in
custody taking into account where applicable the following factors,
namely —
(a)
the
period for which the accused has already been in custody since his or
her arrest;
(b)
the
probable period of detention until the disposal or conclusion of the
trial if the accused is not released on bail;
(c)
the
reason for any delay in the disposal or conclusion of the trial and
any fault on the part of the accused with regard to such
delay;
(d)
any
financial loss which the accused may suffer owing to his or her
detention; …”
[34]
As stated by Legodi J in
S
v DV
[14]
,
these
factors have to be taken into account in a bail application where s
60(11)(a) applies. The learned magistrate had erred
in not
considering these factors.
[35]
In my view he also erred, as correctly argued by Mr. Nel, in finding
that the appellant failed to discharge the onus
placed upon him by
the provisions of s 60(11)(a) of the CPA and had erred in finding the
detention of the appellant to be in the
interest of justice.
[36]
It is not the intention of the legislature in enacting s 60(11)(a) to
legitimize the random incarceration of persons
who are suspected of
having committed Schedule 6 offences. Courts should lean in
favour of the liberty of an accused provided
that it is clear that
the interest of justice will not be prejudiced thereby.
[15]
[37] Bail conditions do
and have always served to address whatever fears the State might
have if an accused is to be released
and must be considered during
the bail application.
The
imposition of bail conditions to secure the interests of the State
appears not to have been considered.
[38]
Conditions pertaining to communication between the appellant and
state witnesses can be enforced. Certain forms of communication
can be prohibited.
[16]
Mr. Nel indicated that the appellant can reside with his mother,
approximately 10 to 12 km away from the shack where the
complainant
resides. Although the appellant is not considered to be a
flight risk, the investigating officer had requested
during her
evidence that a condition pertaining to him reporting to her at her
offices be imposed. It was not argued that
the appellant could
not afford to pay a substantial amount in bail.
[39]
When
weighing
the interests of justice against the right of the appellant to his
freedom and the prejudice he is likely to suffer if
he is to be
detained in custody, I find that the interests of justice permit the
release of the appellant on bail.
The
appeal therefore stands to succeed.
WHEREFORE
I MAKE THE FOLLOWING ORDER:
1.
The
appeal is upheld;
2.
The
refusal of bail is set aside;
3.
Bail
is granted in the amount of R10,000.00 on the following
conditions:
3.1
The appellant must attend court at all times up and until the
finalisation of the trial.
3.2
The appellant must report daily between the hours of 07h00 and 08h00
at the office of the investigating
officer, HARRIET PETRO MCKENZIE,
FSC Unit Galeshewe Police Station.
3.3
The appellant shall reside with his mother at her residence situated
at 104 Sesing Ext up until finalisation
of the trial and must furnish
the said investigating officer with the full residential address of
his mother;
3.4
The appellant shall not contact, communicate and/or
interfere
with and/or intimidate
any of the state witnesses, including the complainant and her mother
Makojana Ivodia Mosoleng, directly or indirectly and/or by
means
of any cellphone or landline telephone, e-mail, Whatsapp,
SMS, Twitter, Facebook or any form of electronic communication
and/or
through his friends, relatives or agents.
3.5
The
appellant shall not visit or be present at or near the area known as
Madiba Square, Kimberley and/or any other residential area
where the
complainant and/or her mother may reside during the duration of the
trial against the appellant.
3.6
The
appellant shall not leave the jurisdiction of the Magistrate’s
Court of the district of Kimberley without the prior permission
of
the Investigating Officer of the case
and,
in her absence, the head of the relevant section and/or unit.
3.7
The
appellant shall hand over all passports and/or
travel
documents that allow him to travel outside South Africa
to the said investigating officer.
________________
SL
ERASMUS
ACTING
JUDGE
For
the Applicants:
Adv.
I.J. Nel (oio Towell & Groenewald Attorneys)
For
the Respondent:
Adv.
Ilanga (oio NDPP)
[1]
S
v Vanqa
2000
(2) SASV 371 (Tk) at 376 j; See also
S
v DB and Others
2012(2)
SACR 492 (GNO) from 495
[2]
S
v Mathebula
2010(1)
SACR 55 (SCA) at para [12]
[3]
In the record the time was transcribed as 03:00;
Record: p 6 l 25
[4]
1999(1)SACR
311 (O); See also
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
1999(2) SACR 51 (CC) at para [53] and [57];
S
v Diale and Another
2013(2)
SACR 85 (GNP) at para [14]
[5]
Section
65(4) of Act 51 of 1977; S v Porthen
2004(2)
SACR 242 (C) at para [17]
[6]
S
v H
1999(1)
SACR 72 (W) at 77 e-f;
S
v Botha
2002(1)
SACR 222 (SCA) at para [16] –[21];
S
v Viljoen
2002(2)
SACR 550 (SCA) at para [13] – [15]
[7]
S
v Pienaar
1992
(1) SACR 178
(W)
at
180
h
[8]
1991(2)
SA 805 (Nm) at 822A
[9]
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
supra
at
p
aragraph
[11] at 641F-H
and
paragraphs [47] - [50] and [101] at 656H-657B/C, 657E/F-658A and
680H-J and Section 60(9) of Act 51 of 1977; See also
S
v DB and Others
2012(2)
SACR 492 (GNO) from 495
[10]
S
v Tshabalala
1998
(2) SACR 259 (C)
at
269
e
–
f;
S
v Vanqa
supra
at
376
b
-
d
[11]
S
v DB and others
supra
at
para [54] and [55]
[12]
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
supra
at
104 h-j, para [57]
[13]
Prokureur-generaal,
Vrystaat v Ramokhosi
1997(1)
SACR 127 (O) at 155d-h;
S
v Yanta
2000(1)
SACR 237 (Tk) at 243i
[14]
Supra
at
para [51]
[15]
S
v Siwela
1999(2)
SACR 685 (W);
[16]
S
v Mathonsi
2016
(1) SACR 417
(GP)