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[2016] ZAKZDHC 35
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S v Ramdass (CC43/2015) [2016] ZAKZDHC 35; 2017 (1) SACR 30 (KZD) (16 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
REPORTABLE
Case
no: CC43/2015
In
the matter between:
THE
STATE
And
DONOVAN
MARK
RAMDASS
............................................................................................
ACCUSED
Judgment
Date:
16 September 2016
PLOOS
VAN AMSTEL J
:
[1]
In the early hours of 3 March 2014 Mrs Dolly Singh
arrived home after a night out with friends, when she found the
lifeless body
of her daughter, Ashika Singh, on her bed. She had been
strangled. The accused, who was Ashika’s boyfriend and shared
the
house with them, was not there, nor was the car which Ashika had
been using. The car was found a short time later where it was parked
in Mahatma Gandhi Street in Durban, and later that morning the
accused was found in Umhlanga Rocks. He claims that he has no
recollection
of what had happened to Ashika or how he ended up in
Umhlanga Rocks. He says he had been drinking the previous afternoon
and smoked
crack cocaine, and if it was he who killed Ashika then he
did so without realising what he was doing and without the intention
to kill her.
[2]
In addition to the charge of murder the accused is also charged with
robbery with aggravating circumstances, in that he took
Ashika’s
cell phone, a Garmin navigational device, a camera charger and her
house keys.
[3]
The question whether it was the accused who killed Ashika presents no
real difficulty. He lived with her and her mother in their
home in
Merebank. On 2 March 2014 the three of them went to a shopping mall
and had lunch. On the way home Ashika dropped the accused
at a tavern
and she and her mother went home. The accused returned later in the
afternoon. Mrs Singh testified that she could see
he had been
drinking and did not look his usual self. She said that was the first
time that she saw him intoxicated. He and Ashika
left together in the
car and returned at about 8 pm. The records of the tracking company
show that the car was driven to an address
where the accused says he
used to buy drugs. Ashika had a bath and then joined her mother in
the lounge. A friend arrived at about
8.30 pm to fetch Mrs Singh as
they were going to a casino. She said the accused was in the bathroom
when she left. When Mrs Singh
returned in the early hours of the
morning she could not open the driveway gate as it was jammed. She
entered through the neighbour’s
property, unlocked the doors
and entered her house. The television was on quite loud and all the
lights were on. She saw that the
house had been ransacked. Cupboard
doors were open and clothes and other items were lying on the floor.
She went to her daughter’s
room and found her on her bed with a
plastic bag over her head. She was dead. There was no-one else in the
house. All the doors
were locked and there was no sign of a forced
entry. She started to scream and within a short while her neighbours,
who were related
to her, arrived. The courtesy car which Ashika had
been using while her car was being repaired was not there. It was
fitted with
a tracking device and located quickly where it was parked
in the Point area in Mahatma Gandhi Road. Later that morning, at
about
11 am, the accused responded to an SMS which was sent to his
cell phone by his cousin. He was in Umhlanga Rocks. When his cousin
collected him from there the accused was in possession of a rucksack
which contained Ashika’s cell phone, her Garmin navigational
device, her house keys and a charger for her camera. The accused
agreed in his evidence that the facts overwhelmingly suggest that
it
was he who had killed Ashika, but said he has no recollection of it.
He blamed this on his state of intoxication due to the
consumption of
alcohol and crack cocaine.
[4]
I am satisfied that the evidence justifies the inference, beyond a
reasonable doubt, that it was the accused who strangled and
killed
Ashika. It is important in this case to explain that in our law a
person who kills another is only punished if he did so
with criminal
capacity and with the intention to kill or negligently. Criminal
capacity in this context means the capacity to appreciate
the
wrongfulness of one’s conduct and the capacity to act in
accordance with that appreciation.
[1]
If a person lacked such capacity then it cannot be said that he acted
unlawfully and the issue relating to intention or negligence
does not
arise.
[5]
The position in our law used to be that voluntary drunkenness which
did not result in a mental disease was no defence in respect
of an
offence committed during such drunkenness, even if the accused was so
drunk that he lacked criminal capacity. See
S
v Johnson
.
[2]
This was said to be illogical in principle but in accordance with the
legal convictions of society.
[3]
The decision in
Johnson
was overruled in
S
v
Chretien
[4]
where the Appellate Division held as follows:
‘
Whenever
a person who commits an act is so drunk that he does not realise that
what he has done was unlawful or that his inhibitions
have
substantially disintegrated, he can be regarded as not being
criminally responsible. If there is a reasonable doubt, the accused
ought to be given the benefit thereof. Someone who is dead drunk and
is not conscious of what he is doing is not liable because
a muscular
movement which is done in this condition is not a criminal act. If
someone does an act (more than an involuntary muscular
movement) but
is so drunk that he does not realise what he is doing or that he does
not appreciate the unlawfulness of his act,
he is not criminally
responsible.’
Rumpff
CJ also made the point
[5]
that one of the problems with regard to acts committed in a state of
intoxication is that the person knows what he is doing while
he is
doing it, but later cannot remember what he had done. The mere fact
that he cannot remember what he had done does not mean
that he was
not criminally responsible.
[6]
The decision in
Chretien
has been criticised by some academic writers
[6]
and supported, perhaps with reservation, by others. Burchell
[7]
says the decision removed voluntary intoxication from the direct
influence of policy considerations and placed it firmly on the
basis
of legal principle with the result that it can affect criminal
liability in the same way, and to the same extent, as youth,
insanity, involuntary intoxication and provocation. This, he says, is
subject to the later decision in
S
v Eadie
.
[8]
In that case Navsa JA held that there is no distinction between sane
automatism and non-pathological incapacity due to emotional
stress
and provocation.
[9]
He referred to
Chretien
and said
[10]
it was important to bear in mind a comment by Burchell to the effect
that although
Chretien
cannot be faulted on grounds of logic or conformity with general
principles, the judgment might well have miscalculated the
community’s
attitude to intoxication. In spite of this implied
reservation the court did not overrule
Chretien
and
it reflects the current state of our law.
[7]
Amnesia is not in itself a defence,
[11]
but may be relevant in determining whether a defence such as
automatism or lack of criminal capacity has been established. The
accused’s defence is that due to the consumption of alcohol and
crack cocaine he did not have criminal capacity to realise
that what
he was doing was wrongful and to act in accordance with such
appreciation. He also says he had no intention to kill the
deceased.
Whether or not he suffered from amnesia is but one of the factors to
be considered in determining whether he had the
required capacity and
intention. The onus in this regard is on the State. In
Eadie
[12]
Navsa JA said the following:
‘
It
is well established that when an accused person raises a defence of
temporary non-pathological criminal incapacity, the State
bears the
onus to prove that he or she had criminal capacity at the relevant
time. It has repeatedly been stated by this Court
that:
(i)
in discharging the onus the State is
assisted by the natural inference that in the absence of exceptional
circumstances a sane person
who engages in conduct which would
ordinarily give rise to criminal liability, does so consciously and
voluntarily;
(ii)
an accused person who raises such a defence
is required to lay a foundation for it, sufficient at least to create
a reasonable doubt
on the point;
(iii)
evidence in support of such a defence must
be carefully scrutinised;
(iv)
it is for the Court to decide the question
of the accused’s criminal capacity, having regard to the expert
evidence and all
the facts of the case, including the nature of the
accused’s actions during the relevant period.’
[8]
I must consider the totality of the evidence in order to decide
whether the State proved criminal capacity and intention on
the part
of the accused beyond a reasonable doubt. This involves the
background facts relating to their relationship, the nature
and
personality of the accused, a possible motive, his state of
intoxication, the fact that he claims to have no recollection of
what
he did and his actions before, during and after the incident.
[9]
The accused was 31 years old at the time and unemployed, apart from
occasional jobs. He lived with his girlfriend and her mother.
His
girlfriend was 36 years old and employed by a firm of insurance
brokers. According to her mother Ashika and the accused argued
from
time to time and sometimes slapped each other. She said they were
nevertheless a happy couple and were planning to get married.
According to her evidence the accused was good to both of them, was
not a violent person and they got on well. She said he did
not drink
alcohol regularly and she never saw him intoxicated, save for the day
of the incident. He did however use drugs in the
past and attended
meetings of an association called Narcotics Anonymous. His cousin,
who testified as a state witness, said the
accused was a humble and
gentle person. The accused himself testified that he could not
believe that he could have done to Ashika
what he is alleged to have
done. He said he was physical to her only once, when he separated her
and her mother and shook her by
her shoulders to bring her to her
senses. When asked why he did not leave her in the light of her
controlling and abusive behaviour
he said he loved her
unconditionally, believed their problems would get better and wanted
to marry her.
[10]
The evidence for the State was that the accused was found in Umhlanga
Rocks the morning after the incident and when asked what
he had done,
appeared to think they were talking about the courtesy car and
pointed out that he was a designated driver. He looked
disorientated
and smelt of liquor. When he was asked about Ashika he said he loved
her very much and did not seem to realise what
had happened to her.
His reaction when he was told that he had apparently killed her was
that he would give himself up to the police
and they should
investigate what had happened.
[11]
The State called a psychiatrist, Professor Mkhize, who was one of the
doctors who interviewed the accused with a view to determining
whether he was by reason of mental illness or mental defect not
capable of understanding the proceedings so as to make a proper
defence, or not criminally responsible for the offence charged, as
contemplated in sections 77, 78 and 79 of the Criminal Procedure
Act.
[13]
It was common cause before me that the accused was fit to stand trial
and that he did not suffer from mental illness or defect
at the time
of the incident.
[12]
The purpose of calling Professor Mkhize appears to have been to deal
with the issue of amnesia. He was at a disadvantage in
this regard as
the sole purpose of his interviews with the accused was to determine
whether he was fit to stand trial and whether
he was mentally ill at
the time of the incident. I have to say, with respect to Professor
Mkhize, that his evidence was not entirely
consistent. He explained
that after the excessive use of alcohol a person may do something
deliberately and conscious of what he
is doing, but may not remember
the next day what he had done. He referred to this as alcoholic
amnesia. He said the accused’s
inability to remember what he
had done could be due to substance intoxication in the form of
alcohol and crack. He thereafter expressed
the view that the actions
of the accused when he left the house were goal directed and
accordingly his inability to remember them
could not be explained by
alcoholic amnesia. He provided no reasons for this statement, which
was inconsistent with his own example
of a person who drank too much
at a party, drove home, stopped at traffic lights, parked the car,
entered the house and the next
morning could not remember how he got
home. He referred to that as goal directed behaviour which could not
be recalled due to alcoholic
amnesia.
[13]
Most of the questions directed to Professor Mkhize by counsel related
to whether or not it was likely that the accused suffered
from
amnesia. His evidence relating to amnesia was perfunctory and not
always consistent. When Professor Mkhize was asked, on the
assumption
that the accused was in fact unable to remember the incident, whether
it was reasonably possible that due to the consumption
of alcohol and
crack cocaine he did not have the capacity to appreciate that what he
was doing was wrong or to form the intention
to kill he said it was a
reasonable possibility. It is of course the function of the court to
make findings of fact and Professor
Mkhize’s view is only
relevant in the sense that he could not exclude that possibility on
psychiatric or scientific grounds.
[14]
The question whether the accused suffered from amnesia should not be
considered in isolation. His
ipse dixit
is obviously not enough. His evidence, that of the state witnesses
and the probabilities must be carefully scrutinised. The contention
on behalf of the State that he falsely claimed to suffer from amnesia
implies that he knowingly and intentionally strangled and
killed the
deceased.
[15]
A puzzling aspect of the case is the motive to kill. The evidence for
the State was that the accused is a humble and gentle
person and that
he was good to Ashika and her mother. Mrs Singh testified that the
accused and Ashika were a happy couple and were
planning to get
married. She said they argued from time to time, but regarded this as
normal. It seems from the evidence that Ashika
was the stronger
personality and exercised excessive control over the accused. On the
day of her death Ashika took the accused
and her mother for lunch and
on their way home dropped him off at a tavern and gave him money for
drinks. It seems likely that
later that day she accompanied him to go
and buy drugs. There is no evidence of an argument or other
unpleasantness before Mrs
Singh was fetched by her friend at about
8.30 pm, at which time the accused was probably smoking crack cocaine
in the bathroom.
The tracking report shows that the car left the
house less than an hour later, by which time Ashika must have been
dead. The motive
suggested by counsel for the State was that the
accused resented the deceased because of her controlling and abusive
behaviour,
or that they may have argued because he wanted more money
to buy drugs. I see no merit in these contentions. The accused agreed
that there were problems in their relationship but was adamant that
they were working on them and were planning to get married.
This was
consistent with Mrs Singh’s evidence. The possibility of an
argument over money is mere speculation and there is
no evidence to
support it. It does not seem likely that if the accused was in
control of his senses he would have killed the deceased
for one of
the reasons suggested by counsel, especially not in the manner in
which he did. In my view no motive to kill the deceased
was
established even as a reasonable possibility.
[16]
The evidence for the State was that when the accused was found the
following morning and asked what he had done, he appeared
to think
the complaint related to his use of the car. He appeared not to know
what had happened to Ashika and was disorientated.
Counsel for the
State submitted that the witnesses who testified to this effect were
biased as they were related to the accused.
They were state witnesses
and I certainly did not get the impression that they were not telling
the truth.
[17]
The evidence as a whole does not suggest that the accused was
untruthful about his inability to remember what had happened
to the
deceased. It is correct, as counsel for the State submitted, that his
evidence was not always consistent as to what he was
able to
remember. I am not able to find that he was untruthful in this
regard. He was not a bad witness and my impression was that
he was at
times uncertain whether he knew something because he recalled it or
because he had read it in a statement or heard it
in court. It is
also correct that he mentioned some facts to Professor Mkhize which
he said in court he did not remember. There
was no expert evidence
regarding the working of the mind and its ability to recall facts
consistently. Suffice it to say that it
was not my impression that
the accused was faking his inability to recall the event.
[18]
I interpose here a reference to an application, after the case for
the accused was closed, to reopen the case for the State
in order to
recall Professor Mkhize and to call Ms Elkington, a clinical
psychologist employed by the Department of Health of KwaZulu-Natal,
who interviewed the accused and whose report was handed in by
agreement during the trial. I refused the application and said I
would provide the reasons for that ruling in this judgment.
[19]
Counsel relied on the decision in
S
v Felthun
[14]
where the court said that a trial court has a general discretion in
both civil and criminal cases to allow a party who has closed
his
case to reopen it and lead evidence at any time up to judgment.
Vivier JA said the proper approach is that the Court’s
discretion should be exercised judicially upon a consideration of all
the facts of each particular case, having regard to the
considerations mentioned in the cases and applying them as guidelines
and not inflexible rules. He said the following:
[15]
‘
The
considerations mentioned by the Courts include the following: the
reason why the evidence was not led timeously, the degree
of
materiality of the evidence, the possibility that it may have been
shaped to relieve the pinch of the shoe, the possible prejudice
to
the other side, including such factors as the fact that a witness who
could testify in rebuttal may no longer be available,
the stage which
the proceedings have reached and the general need for finality.’
[20]
It is not unusual for the State to be given an opportunity to lead
evidence in rebuttal where the defence had called an expert
witness.
That is not the case here. The defence did not call an expert witness
and there is no such evidence to rebut. Counsel
said he wanted to
recall Professor Mkhize and call Ms Elkington so that they could
comment on the version given by the accused
in his evidence, which
counsel contended differed materially from what he had said to them
in the interviews and from what had
been put in cross-examination.
[21]
Ms Elkington interviewed the accused on four occasions in January
2015, some ten and a half months after the incident. She
says the
following in her report:
‘
Currently,
Mr Ramdass’ cognitive functions appear intact, and there is no
evidence of visual or verbal memory impairment.
However, he displayed
a relative weakness in his ability to retain verbal information. He
was able to give an adequate account
of his personal history, but
unable to recall any details of the alleged crime. His account of the
hours leading up to and following
the incident is simplistic. Mr
Ramdass reports a history of substantial substance misuse, leading to
the occurrences of sporadic
amnestic episodes. He reports symptoms of
withdrawal and tolerance. He further reports that he was intoxicated
at the time of the
alleged offence’.
Her
statement that there was no evidence of verbal memory impairment, to
which counsel referred in argument, was obviously a reference
to his
condition at the time of the interview and not to the incident
itself, which she further on said he could not recall.
[22]
Counsel motivated his application to reopen the case on the basis
that the accused’s evidence differed from what was
contained in
his plea explanation, from what was put by defence counsel in
cross-examination and from what the accused had told
the people who
interviewed him. He submitted that accordingly they should be given
an opportunity to comment on his evidence. I
asked counsel what kind
of comment he had in mind and he said whether or not the accused’s
evidence as to what he could remember
was likely.
[23]
While there may be some merit in saying that the accused was not
entirely consistent as to what he remembered and what he had
reconstructed I do not consider that there were material
contradictions between his plea explanation, what he had told the
people
who interviewed him and his evidence.
[24]
The purpose of Ms Elkington’s report does not appear from it,
save that it says that the reason for the referral was
a forensic
psychological assessment. There is nothing in the report which is in
material conflict with the accused’s evidence,
and the opinions
recorded in the report deal with his intellectual capacity,
personality traits and personality functioning.
[25]
It seems plain that the State’s decision not to call Ms
Elkington was a deliberate one and not due to a mistake or
misunderstanding.
I failed to see why it should be allowed to call
her after the defence case was closed. In all the circumstances of
the case, and
the content of her report, there seemed to be no reason
to believe that her evidence would assist me in any material way, or
that
it would have been fair to the accused to let the State call
evidence at that stage of the proceedings to attack his credibility.
The same goes for Professor Mkhize.
[26]
I turn to consider whether the State discharged the onus of proving
beyond a reasonable doubt that the accused at the time
of the
incident had the required capacity to be criminally responsible. If
there is a reasonable doubt about this then he is entitled
to be
acquitted.
[27]
Counsel for the State correctly submitted that there is no evidence
as to how much alcohol the accused consumed. The deceased’s
mother said when he got home he was not himself and it was the first
time that she saw him intoxicated. The question as to how
much he had
drunk becomes less important in the light of the fact that he
thereafter smoked crack cocaine. He then strangled the
woman he was
intending to marry, apparently in the course of a struggle that left
them both with scratch marks. There is no apparent
motive as to why
he would have done this. He was described by a state witness as a
gentle and humble person who would not hurt
a fly. He then drove off
and left the car in Mahatma Ghandi Street in Durban. The following
morning he responded to a call from
his cousin and told him he was in
Umhlanga Rocks. When he was found there he had no recollection of
what had happened or how he
came to be in Umhlanga Rocks.
[28]
Counsel for the State submitted that the accused could not have been
so intoxicated that he lacked criminal capacity, having
regard to his
actions when he left the house. He had to unlock and open the front
door and security gate, open the driveway gate,
drive the car out,
close the gate and then drive to the city centre. He also drew
attention to the cupboards that the accused opened
in the house, the
items he threw on the floor and the fact that he took the deceased’s
phone, camera charger and Garmin device.
There is no expert evidence
to the effect that these apparent goal-directed actions are
inconsistent with the state of intoxication
in which he says he must
have been. On the contrary, Professor Mkhize expressed the view, on
the assumption that his amnesia is
genuine, and with knowledge of his
subsequent behaviour, that he may have lacked the capacity to realise
that what he was doing
was wrong or to act in accordance with such
appreciation or to form the intention to kill.
[29]
I am conscious of the need for caution in finding too readily that a
person who had killed someone is not criminally responsible
because
he acted involuntarily or without criminal capacity. Rumpff CJ said
in
Chretien
[16]
this may bring the administration of justice into disrepute.
Nevertheless, this does not mean that the court may shirk its duty
to
determine whether the guilt of an accused person was established
beyond a reasonable doubt. If there is a reasonable doubt as
to his
criminal capacity then he must get the benefit of that doubt.
[17]
[30]
In my view the accused established a sufficient foundation for the
defence of lack of criminal capacity. On the totality of
the evidence
before me there is a reasonable doubt whether he had the required
capacity when he strangled the deceased. I say this
on the basis of
the evidence regarding their relationship, that they were planning to
get married, the absence of any motive to
kill her, the fact that he
was regarded by those who knew him as a gentle and humble person,
that what he did was completely out
of character, the evidence that
he had consumed alcohol and smoked crack cocaine, the fact that he
could not remember what he had
done, the fact that he was found in
Umhlanga Rocks the following morning, that he did not try to avoid
those who were looking for
him, and that he still had the bag with
the items which he had taken from the house and did not try to hide
it. There was no expert
evidence to suggest that it was likely that
he killed her well knowing that what he was doing was wrong. I cannot
have regard to
statements made by judges in other cases which are
based on expert evidence before them, such as, for example, that
alcoholic amnesia
is a rare occurrence.
[18]
There was no such evidence before me. Added to this is the fact that
the accused wanted to plead guilty until counsel advised him
that on
his version he may in fact not be guilty.
[31]
Counsel for the State submitted that in those circumstances the
accused should be convicted of culpable homicide. In the absence
of a
finding that the accused had criminal capacity he cannot be convicted
of culpable homicide as it too requires that the accused
was able to
appreciate the wrongfulness of his conduct and to act in accordance
with such appreciation. If he was not then his
conduct was not
unlawful.
[19]
[32]
I should perhaps explain that after the decision in
Chretien
some commentators questioned whether a person who commits a
prohibited act while extremely intoxicated should escape all criminal
liability and argued that legislative reform to fill the gap left by
Chretien
could provide the answer. In 1982 the Minister of Justice requested
the South African Law Commission to consider the matter. Its
report
was published in 1986 and resulted in the Criminal Law Amendment Act
1 of 1988.
[20]
Section
1(1) of the Act created a statutory offence in the following terms:
‘
Any
person who consumes or uses any substance which impairs his or her
faculties to appreciate the wrongfulness of his or her acts
or to act
in accordance with that appreciation, while knowing that such
substance has that effect, and who while such faculties
are thus
impaired commits any act prohibited by law under any penalty, but is
not criminally liable because his or her faculties
were impaired as
aforesaid, shall be guilty of an offence and shall be liable on
conviction to the penalty which may be imposed
in respect of the
commission of that act.’
[33]
The difficulty with the statutory offence is the requirement that the
accused must have been so drunk that he lacked criminal
capacity. In
a case where the accused is acquitted on a charge of murder on the
basis that there is a reasonable possibility that
he was so drunk
that he lacked the required capacity he cannot be convicted of the
statutory offence unless the court can find
beyond a reasonable doubt
that he did not have such capacity. This difficulty has been pointed
out more than once by the courts
and academic writers.
[21]
It is however up to the legislature to decide whether or not the
statute should be amended.
[34]
The outcome of this case does not mean that persons charged with
violent crimes can escape liability easily by claiming a lack
of
criminal capacity due to the use of alcohol or drugs. Each case will
be decided on its own facts and the evidence scrutinised
carefully.
The State will be well advised to lead expert evidence to assist the
courts in deciding the issues relating to criminal
capacity. Such
expert evidence should be cogent and thorough, which unfortunately
was not the case before me.
[35]
My finding is that the State has not proved beyond a reasonable doubt
that the accused had the required criminal capacity when
he caused
the death of the deceased. The result is that he cannot be convicted
on either the murder or the robbery charge. He is
acquitted on both
counts.
PLOOS
VAN AMSTEL J
Appearances:
For
the State :
Adv. K Shah
Instructed
by :
Director of Public Prosecutions
Durban
For
the Accused :
Mr M Qulo
Instructed
by :
Legal Aid
Durban
Date
of Hearing :
25,26,28,29 April 03 May 2016
05,
07, September 2016
Date
of Judgment :
16 September 2015
[1]
J
Burchell
South
African Criminal Law and Procedure
Vol
1
,
4
th
ed at 51. Also see CR Snyman
Criminal
Law
,
6
th
ed at 155-6.
[2]
S
v Johnson
1969 (1) SA 201 (A).
[3]
Op.
cit.
at 207F-G.
[4]
S
v Chretien
1981 (1) SA 1097
(AD). I quote from the headnote as the judgment is
in Afrikaans.
[5]
Ibid
1108C.
[6]
CR
Snyman
Criminal
Law
6
th
ed at 221-2.
[7]
Op.
cit.
320.
[8]
S
v Eadie
2002 (1) SACR 663
(SCA) at 666.
[9]
Ibid.
para 57.
[10]
Ibid.
para 27.
[11]
S
v Piccione
1967 (2) SA 334
(N) at 335C-D.
[12]
Op.
cit. para 2.
[13]
Criminal
Procedure Act 51 of 1977
.
[14]
S
v Felthun
1999 (1) SACR 481
(SCA) at 486.
[15]
Op.
cit. at 487.
[16]
Op.
cit. at 1105H.
[17]
Ibid.
1106C.
[18]
R
v Botha
1959 (1) SA 547
(O) at 549F.
[19]
J
Burchell
Principles
of Criminal Law
,
4
th
ed, at 569.
[20]
Ibid
page 308-9.
[21]
S
v Hutchinson
1990 (1) SACR 149
(D) at 154-5;
S
v Mbele
1991 (1) SA 307
(W) at 311;
S
v September
1996 (1) SACR 325
(A) at 327-8. Burchell op. cit. at page 310 and
further; Snyman op. cit. at page 227 and further.