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[2015] ZAGPPHC 1107
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Van der Merwe v S (A627/2011) [2015] ZAGPPHC 1107 (4 June 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
CASE
NO: A627/2011
DATE:
4/6/2015
In
the matter between:
MAGDALENA
ADRIANA VAN DER
MERWE
APPELLANT
and
THE
STATE
RESPONDENT
J
U D G M E N T
HIARD
ON : 14 April 2015
JUDGMENT
ON : 04 June 2015
CORAM
: KUBUSHI, J
: TSASl,AJ
KUBUSHl,
J
BACKGROUND
[1]
The appellants are appealing the judgment of the
regional court magistrate, Pretoria.
The first
appellant,Phenster Production CC,is a close corporation and is a
juristic person for purposes of this judgment. Magdalena
Adriana Van der Merwe ("Ms Van der Merwe"), the second
appellant in these proceedings, is the sole member of the first
appellant and is as such representing the first appellant. Ms Van der
Merwe is the second appellant in her personal capacity.
[2]
Both appellants were at all material times, during the trial and in
this appeal, represented by Adv IKlepper. The prosecution
was
initially led by Adv Bredent?amp and later led by Mr Ferreira until
the matter was finalised. Mr Ferreira represented the respondent
in
the appeal hearing as well.
[3]
Five counts were preferred against both appellants by the respondent.
Three counts of active corruption in terms of s 1 (1)
(
a
)
(i) of the Corruption Act 94 of 1992 ,the allegation being that
Ms Van der Merwe gave Ms Thembi Sylvia Cecilia Buthelezi ("Ms
Buthelezi") and Mr Simon Vincent Khoza ("Mr Khoza")
money which was not legally due but aimed to influence them;
one
count of conspiracy in terms of s 18 (2)
(
a
)
of the Riotous Assemblies Act 17 of 1956, the allegation being
that the appellants conspired together with Buthelezi and Mr Khoza
to
commit the offence with which the appellants were charged with; and
one count of fraud in that the appellants misrepresented
to the
Independent Electoral Commission ("IEC") that the first
appellant consisted of previously disadvantaged individuals
whereas
it was not the case. The state alleged that all these offences were
perpetrated against the IEC.
[4]
The appellants pleaded not guilty to all the charges but were
convicted of the three counts of active corruption and fraud.
In
convicting them for active corruption, the trial magistrate found
that there was a generally corrupt relationship between the
appellants, Ms Buthelezi and Mr Khoza,in that the money given to Ms
Buthelezi and Mr Khoza by Ms Van der Merwe was not legally
due to
them and was given to safeguard that the first appellant continues to
receive contracts and tenders from the IEC.
[5]
The trial magistrate refused the appellants' application for leave to
appeal the convictions but leave was granted on petition.
The
appellants are therefore before us appealing the convictions only.
[6]
The appellants were initially arraigned together with Ms Buthelezi
and Mr Khoza. The two pleaded guilty and agreed to testify
against
the appellants. It is common cause that Ms Buthelezi and Mr Khoza
were at the time of the commission of the offences employees
of the
IEC. Ms Buthelezi held the ranR of Director of MarReting in the
Communications Department. Her worR entailed,amongst others,
the
power and duty to procure services and products for the IEC through
tender and quotation procedures. Mr Khoza was appointed
as acting
Chief Director: Corporate Services Division. His worR entailed,
amongst others, the power and duty to manage procurement
functions
within the IEC.
[7]
It is common cause that during the duration of the trial Ms Van der
Merwe was residing in New Zealand and flew in and out of
the country
in order to attend trial. She was released on her own cognisance and
warned to attend court. On one occasion she failed
to attend court
and a warrant of arrest was authorised against her but held over
pending the next court date. An enquiry into her
failure to attend
court was as a result held. The trial magistrate found her guilty of
contempt of court and in passing sentence
only warned and discharged
her. The second appellant is appealing this conviction as well. I
shall in this judgment refer to that
appeal as 'the contempt of court
appeal' in order to distinguish it from the main appeal.
[8]
At the hearing of the appeal,the appellants' counsel called for the
dismissal of the main appeal on the ground that the record
of appeal
which required to be reconstructed, not-withstanding the
reconstruction was insufficient for the adjudication of the
appeal.
This point
i
n
l
i
m
i
ne
does not relate to the contempt of court appeal.
RECONSTRUCTI
ON OF THE RECORD
[9]
It is common cause that some parts of the record of appeal before us
have been reconstructed. The transcription of the record
of the trial
was incomplete with regard to two full days' evidence of one of the
state witnesses, Ms Buthelezi,namely, the evidence
of 17 and 18
September 2007, and on day's evidence of Ms Van der Merwe, namely,
the evidence of 22 May 2009. In total the recording
of evidence
spanning two and half days was not recorded. Those parts of the
evidence are lost. Leave to appeal having been granted
to the
appellants an appeal record had to be prepared and because of the
lost evidence the record of the trial required reconstruction
as
well.
[10]
The appeal was initially enrolled for hearing on 9 April 2013 but had
to be postponed due to the incomplete record. Difficulties
were
endured in preparing the appeal record because the incomplete trial
record could not be reconstructed. Attempts were made
on numerous
occasions, unsuccessfully so, to resolve the issue of preparing and
completing the appeal record in order for the appeal
to continue. The
attempts were unsuccessful because of lack of information to
reconstruct the trial record. This caused the hearing
of the appeal
to be delayed for several years. Eventually, after a search of many
months by the trial magistrate, and only on 15
January 2014 the trial
magistrate found his notes on the trial.
[11]
On 10 April 2014, some approximately five years from the date the
evidence was concluded, the parties converged in open court
in an
attempt to reconstruct the record of evidence. The parties available
at such reconstruction were the trial magistrate, the
prosecutor Mr
Ferreira and the appellants' counsel Mr Klopper. Ms Van der Merwe did
not attend. Both Mr Ferreira and Mr Klopper,
due to the passage of
time, did not have their notes on the trial. Mr Ferreira as already
stated was not involved in the case at
the time Ms Buthelezi
testified. The reconstruction of the record as such depended solely
on the notes of the trial magistrate.
It is not in dispute that the
notes of the trial magistrate on the evidence of Ms Buthelezi
consisted of only six questions and
six cryptic answers to those
questions. It is also common cause that the trial magistrate read
into the record not less than 109
questions and answers which he
recorded on the morning of 22 May 2009 when Ms Van der Merwe was
being cross examined.
[12]
The process followed by the trial magistrate in constructing the
record was to read his notes into the record, a process which
was
objected to by Mr Klopper. Counsel preferred that the notes should be
transcribed and handed to the defence and the prosecution
for their
own transcription. The parties would then after reconstructing the
notes individually, converge again in court to reconstruct
the record
together. The trial magistrate did not accede to the process proposed
by Mr Klopper. The notes were thus read into the
record where after
they were transcribed and sent to the parties for confirmation.
[13]
It appears from the record that Ms Van der Merwe, on behalf of both
appellants, was not satisfied with the attempted reconstruction
and
in an affidavit deposed to on 9 July 2014 she set out the
deficiencies she perceived to be in the reconstructed record. The
deficiencies in the affidavit are similar to those raised by the
defence when the appeal was argued before us.
[14]
The submission by the appellants is that notwithstanding the efforts
done in trying to reconstruct the record, the appeal record
contains
deficiencies that were impossible to rectify and that, due to the
lapse of time it would be difficult or impossible to
reconstruct the
trial record. According to Mr Klopper, the attempted reconstruction
is insufficient for the court adjudicating
the appeal to determine
and obtain a proper view on what evidence was produced at the trial,
especially from the all-important
state witness, Ms Buthelezi. It
was, thus, argued on behalf of the appellants that due to the
incomplete record, the appeal in
respect of the convictions cannot
properly be adjudicated and therefore the convictions and the
consequent sentences must be set
aside.
[15]
The respondent, on the other hand, submits that the appeal should be
proceeded with on the basis that as at 27 March 2012 the
appellants
filed their heads of argument and were prepared to proceed with the
appeal. It was only when the respondent pointed
out that there were
certain shortcomings in the record that the initial appeal was not
proceeded with. The appellants were then
prepared to proceed with the
appeal on the record as it stood. Mr Ferreira on behalf of the
respondent contends that when the reconstruction
took place Mr
Klopper, for both appellants, was also present and placed it on
record that he has no notes with which to assist
in the
reconstruction process. He can therefore not be heard to complain
about the reconstructed record. According to Mr Ferreira,
the defence
of the appellants to the charges appears clearly in the record and
the issues on appeal are highlighted in the heads
of argument by the
appellants and the respondent. The issues on appeal are clearly
established from the available record. And,
as such, the record has
been reconstructed and the appeal should be proceeded with, so Mr
Ferreira argued.
[16]
The issue to be determined by this court, therefore, is whether the
reconstructed record of proceedings in the trial court
is adequate
for the consideration of the appeal before us.
[
17]
In
S v
C
h
a
bedi
[1]
Brand
JA said the following regarding the record on appeal:
'[5]
On appeal, the record of the proceedings in the trial court is of
cardinal importance. After all, that record forms the whole
basis of
the rehearing by the Court of appeal. If the record is inadequate for
a proper consideration of the appeal, it will, as
a rule, lead to the
conviction and sentence being set aside. However, the requirement is
that the record must be adequate for proper
consideration of the
appeal; not that it must be a perfect record of everything that was
said at the trial. As has been pointed
out in previous cases, records
of proceedings are often still kept by hand, in which event a
verbatim record is impossible, see
S v Collier
1976 (2) SA 378
( C )
at 379 A-D and S v S
1995 (2) SACR 420
at 432 b-f.
[6]
The question whether defects in a record are so serious that a proper
consideration of the appeal is not possible, cannot be
answered in
the abstract. It depends,
i
nter al
i
a,
on
the nature of the defects in the particular record and on the nature
of the issues to be decided on appeal.'
[18]
It is trite that a record of proceedings in the trial court forms the
whole basis of the hearing by a court of appeal. For
an appeal to be
prosecuted effectively a proper record of the trial court proceedings
must be placed before the appeal court. There
can be no fair trial
for an accused person if no proper record is provided.
[19]
The question is not whether the parties themselves are satisfied
about the record placed before the court of appeal, as Mr
Ferreira in
his argument wants to suggest, but whether the record is adequate for
a proper adjudication of the appeal by the appeal
court.
[20]
It is not in dispute that, in this instance, there is a large chunk
of evidence that was lost and is irrecoverable. It is also
common
cause that except for the notes of the trial magistrate no other
information is available to assist in reconstructing the
lost
evidence. Both the defence and the prosecution, because of the
passage of time, do no longer have their notes on the trial.
[21]
To my mind, the appellants' submission that the reconstructed record
is insufficient to determine a fair trial is correct.
[22]
In his submission before us, Mr Klopper contended that the record is
insufficient for a proper adjudication of the appeal on
the following
grounds:
[23]
Firstly, the attempted reconstruction of the evidence of Ms Buthelezi
given over a period of two days is totally incomplete.
The attempted
reconstruction of this evidence on 10 April 2014 indicates that the
trial magistrate noted the total evidence of
Ms Buthelezi as the sum
total of only six short questions and six cryptic answers. According
to Mr Klopper, it is highly improbable
that the evidence of Ms
Buthelezi which appears to have been contained in about 200 pages
given over two full days would amount
to only six questions and six
answers. The reconstruction, therefore, is totally unsatisfactory and
inadequate to determine the
contents of Ms Buthelezi's evidence over
those two days.
[24]
In comparison with the summarised evidence of Ms Buthelezi, the trial
magistrate read no less than 109 questions and answers
into the
record on 10 April 2014 which he indicated he recorded during one
morning (half a day) of the cross examination of Ms
Van der Merwe on
22 May 2009. The recording of six questions and six answers over two
days is clearly a totally insufficient recording.
[25]
The trial magistrate's reduction of Ms Buthelezi's evidence of two
days into six short questions and six cryptic answers creates
huge
gabs in her evidence. The result is that an inference may be made
that either the trial magistrate did not keep notes or did
not apply
his mind during the evidence or he totally ignored or disregarded the
evidence.
[26]
Secondly, the summary of the evidence contained in the trial
magistrate's judgment does not assist the situation. It is difficult
to determine from the judgment whether the evidence was correctly
summarised and properly adjudicated upon by the trial magistrate
or
whether all the evidence was considered.
[27]
Ms Buthelezi was allegedly involved in every single aspect of the
charges against the appellants - she was the contact person.
Her
evidence is thus crucial in implicating the appellants in the
commission of the offences. From the judgment it cannot be tested
whether the trial magistrate correctly summarised her evidence. The
transcribed part of Ms Buthelezi's evidence consists of approximately
350 pages (vol. 4 p1020 to vol. 5 p1365) and when the missing part of
about 200 to 240 pages is considered, her whole evidence
ought to
have been contained in approximately 600 pages. All this evidence was
summarised by the trial magistrate in only two pages
(vol. 7 p1875 to
p1877) of his judgment.
[28]
Thirdly, from reading the trial magistrate's judgment (vol. 7 p1884)
he refers to contradictions by the cardinal state witness,
Ms
Buthelezi and came to a conclusion that the contradictions were not
material. He does not deal or make mention of the contradictions.
It
can therefore not be ascertained from the reconstructed record
whether such contradictions were dealt with properly in order
to come
to the conclusion that they were not material. For example one of the
major discrepancies which the trial magistrate did
not deal with is
Mr Khoza's evidence when he testified that when it was decided to put
out a tender for postage, he went to a meeting
with Ms Buthelezi and
Ms Van der Merwe where the tender was discussed, but Ms Buthelezi's
evidence is that during that time Ms
Van der Merwe was not in town
but in Kwa-Zulu -Natal which is common cause. The trial magistrate's
judgment does not deal with
this discrepancy at all.
[29]
On the issue of the heads of argument raised by Mr Ferreira in his
argument, Mr
Klopper
asserts that the heads of argument were prepared on the basis of what
was before court and does not in any way substitute
the missing
evidence from the record. The evidence is lost and the heads of
argument cannot fill the gabs, so he argued.
[30]
I am in agreement with the submissions by Mr Klopper and have to
conclude that the reconstructed record before us is insufficient
for
a proper determination of a fair trial. The defects in the
reconstructed record are so serious that a proper consideration
of
the appeal is not possible. Consequently, my opinion is that all the
convictions and the resultant sentences stand to be set
aside.
THE
CONTEMPT OF COURT APPEAL
TSATSl,
AJ
[31]
This was an appeal against the judgment of the Pretoria Regional
Court (the court
a
quo),
in terms of
which the second appellant was convicted of contravening section 170
of the Criminal Procedure Act ("the Act")
which was
"contempt of court". The court
a
quo
warned and discharged the second appellant without imposing a fine or
ordering a sentence of direct imprisonment. The second appellant
appealed with permission being granted after petition to this Court.
[32]
The events giving rise to the charge of contempt of court upon which
the second appellant was convicted and sentenced are summarized
thus:
the state instituted charges 1,2,and 4 of active corruption,3 of
conspiracy and charge 5 of fraud against the first and second
appellants around July 2011. The first appellant is a close
corporation owned by the second appellant. It tool? the state about
four years to prepare the charges. The second appellant appeared in
the court
a
quo
on warning even though
she was living in New Zealand since 2003.The state was finally ready
to proceed with the trial around August
2006. Such proceedings
continued until July 2008.The second appellant failed to attend court
from 21 July 2008 to 31July 2008 because
she could not travel to
South Africa due to her alleged medical condition, heart disease. The
warrant for the second appellant's
arrest was issued but suspended to
late 2008.This was due to the fact that the medical doctor of the
second appellant indicated
that she would be able to travel to South
Africa in December 2008.
[33]
On 8 December 2008 the second appellant appeared in court and an
inquiry into her failure to attend the previous court proceedings
was
held. In her defence the second appellant produced medical
certificates and reports as proof that she was medically unfit to
travel to South Africa, at the time in question. The said medical
certificates indicated that she suffered from a heart problem.
Notwithstanding evidence placed before the court
a
quo
the second appellant was convicted of contempt of court. As part
of her sentence the court
a
quo
ordered
the second appellant to hand over her passport prohibiting her to
travel to her home in New Zealand. She approached this
court on an
urgent basis to set aside the order of the court
a
q
u
o
.
She succeeded in her application and the decision of the court
a
quo
of ordering her to hand over her passport was
set aside.
[34]
Subsequent to the decision of the court
a
quo
to order the second appellant to hand over her passport, the
latter made an application to the court
a
quo
to have the learned magistrate recuse himself. The basis of the
second appellant's recusal application was that the learned
magistrate
was biased against her. The learned magistrate refused to
recuse himself.
[35]
The main issue in this appeal was whether or not the second appellant
was in contempt of court when she failed to appear in
the court
a
quo
due to a medical condition, a heart problem.
The underlying question being whether or not the medical certificate
produced by the
second appellant failed to disclose the reason why
the second appellant could not fly to South Africa to attend her
court proceedings.
[36]
The second appellant was found guilty of contempt of court in terms
of s 170 of the Criminal Procedure Act. The section provides
as
follows:
"(1)
An accused at criminal proceedings who is not in custody and who has
been released on bail, and who fails to appear at
the place and on
the date and at the time to which such proceedings may be adjourned
or who fails to remain in attendance at such
proceedings as so
adjourned, shall be guilty of an offence and liable to the punishment
prescribed under subsection (2).
(2)
The court may, if satisfied that an accused referred to in subsection
(1) has failed to appear at the place and on the date
and at the time
to which the proceedings in question were adjourned or has failed to
remain in attendance at such proceedings so
adjourned, issue a
warrant for his or her arrest and, when he is brought before
the
court, in
a
summary manner
enquire into
his
or
her
failure
to
appear
or
so to
remain in attendance and, unless the accused
satisfies the court that his or her
failure
was not due to fault on his or her part, convict him or her of the
offence referred to in subsection (1) and sentence him
or her to a
fine not exceeding R300 or to imprisonment for a period not exceeding
three months."
[37]
Section 170 deals with the failure of an accused person in a criminal
trial to appear after an adjournment or to remain in
attendance and
the procedure followed once he or she is in attendance. It should be
noted that the provisions of the Criminal Procedure
Act, relating to
the procedure which shall be followed in respect of an enquiry
referred to in s 170 of the Criminal Procedure
Act, applies
mutat
i
s
mut
a
nd
i
s
in respect of
an enquiry where an accused fails to attend or remain in attendance
when in terms of s 72 (4) he or she is warned
to appear; or when
summoned to appear in terms of s 55 (2);or when on notice in terms of
s 56 (5); or when released on bail in
terms of s 67 (2).
[38]
On appeal the second appellant's counsel submitted that the court a
quo misdirected itself by convicting the second appellant
of being in
contempt of court by failing to accept the medical report provided by
the second appellant simply because the investigating
officer
questioned the correctness thereof, even though no contrary evidence
was placed before the court. Counsel submitted further
that there was
abundant uncontested evidence placed before the court
a
quo
that the second appellant was medically unfit to take arduous
long flights from New Zealand to South Africa and
vi
c
e
versa
due
to a heart condition. Counsel for the
second appellant argued that a reasonable and acceptable explanation
of why the second appellant
was not in court on the day she failed to
appear in court was placed before the court
a q
u
o
.
In addition to the medical reports and certificates that she
produced in the court
a qu
o
,
she also deposed to
an affidavit explaining why she did not attend court on the day in
question.
[39]
It was submitted on behalf of the respondent that it was required of
the second appellant to satisfy the court
a
quo
that her failure to appear in court was not due to any fault on
her part. A further submission on behalf of the respondent was that
the medical certificates produced did not comply with the
requirements of the documentary evidence. It was submitted that the
circumstances under which the said medical certificates were issued,
the language used and the mistakes contained, including the
reasons
provided for the second appellant's absence created more questions
than answers. It was further submitted by counsel for
the respondent
that the medical certificates indicated that the "event"
tool place in December 2007 but the second appellant
was able to
travel to South Africa in March 2008. She then failed to appear in
July 2008.
[40]
A further submission on behalf of the respondent was that she failed
to appear on the date the matter was postponed to and
therefore s 170
read with s 169 and s 55 of the Criminal Procedure Act came into
operation.
[41]
The submission by the state that the medical certificates produced by
the second appellant did not comply with the requirements
of the
documentary evidence and therefore constituted hearsay evidence was
misplaced. It is my view that the court
a
quo
did not make such a finding. From the reading of the judgment of the
court
a
quo
it is clear that it accepted
the medical certificates into evidence. What, however, the court
a
quo
was not satisfied with was the contents thereof,
that is, the explanation provided by the doctors in the said medical
certificates.
[42]
There is no indication in the court a quo's judgment that it did not
accept the medical certificates. In its judgment the court
a quo
stated as follows:
"The
first document handed by the accused, the general practitioner,
were very much questionable because he is not a
cardiologist, he is
not a specialist in heart disease and the way he,
the content
of the report
to this court and to the State as well,
i
t
was not in detail
,
it was scanty
. And the further
documents handed to this court, I om not going to refer to them one
by one, I must soy unless maybe the writers
thereof, the authors
thereof testified under oath, maybe the court may have come to a
different conclusion. I must soy - I om not
saying the authors
thereof tried to mislead the court,
but they do not
i
ndicate
exactly
that the accused was a person who was not
i
n a position to fly to South Africa not even one
document
before me states that. He does not explain
exactly
why the accused con not fly
."
and
"I
do not want to repeat word by word what the advocate for the State
hos said about these reports. I am persuaded to unfortunately
to
agree with him that these reports ore very much unhelpful.
They do
not
soy
much:
they
do not
explain
exactly
why
you
were not
i
n court
. I have
to come to the conclusion that you deliberately stayed in New Zealand
because you felt aggrieved." (my emphasis)
[43]
It is common cause that in the enquiry conducted in terms of s 170
(2) of the Criminal Procedure Act, the court
a
quo
was not satisfied with the explanation offered by the second
appellant as to why she did not appear in court on the date and time
to which the proceedings were adjourned and consequently, convicted
her of contempt of court.
[44]
Section 170 (1) of the Criminal Procedure Act obliges an accused
person, when a case has been adjourned, to appear at the place
and on
the date and time to which the case in question was adjourned and to
remain in attendance until the court adjourns or he
or she is
excused.
[45]
When an accused person who was not present in court on the date and
time at which the case was adjourned next appears in court,
a summary
enquiry into the reason for his or her absence must be held.
[46]
Section 170 (2) of the Criminal Procedure Act enjoins the accused to
satisfy the court that his or her failure to appear in
court was not
his or her fault. The accused bears the
o
nus
of
explaining his or her failure to attend but need only satisfy the
court that there is a reasonable possibility that his or her
failure
was not due to fault on his or her part. See S v Singo
[2002] ZACC 10
;
2002 (2) SACR
160
(CC) para 23. In that judgment the principle was discussed in
relation to s 72 of the Criminal Procedure Act but it applies as well
in respect of a 170 (2) of
[47]
It is not in dispute that the second appellant provided the court
with an affidavit explaining why she was not in court on
the day in
question. It is also not in dispute that besides the affidavit in
which she set out the reason why she did not appear
in court on the
day in question, she also provided the court with medical
certificates from two doctors, Dr Pieter Vosloo and Dr
Else
Seligmann. Both doctors in their respective medical certificates
states that they examined the second appellant and concluded
that she
was not fit to travel. The medical certificates were handed in, in
support of her explanation set out in the affidavit.
The court
a
quo
was, however, not satisfied by this explanation
because according to the court the information contained in the
medical certificates
was 'scanty' and 'does not explain exactly why
the second appellant could not fly to South Africa'.
[48]
It is my view that the court
a quo
was wrong to have come to
such a conclusion because the explanation is explicitly stated in the
respective medical certificates.
The reason stated was that the
second appellant could not fly was because she suffered from a heart
problem. The court
a
qu
o
was also wrong
to not accept the explanation of Dr Vosloo simply because he was not
a cardiologist. The explanation provided by
the two doctors, in my
opinion, is reasonable and acceptable and the court
a quo
should
have accepted it. The
o
nus
placed upon the second
appellant was merely to satisfy the court
a quo
that there was
a reasonable possibility that her failure to appear was not due to
her own fault.
[49]
The trial court ought to have found that the second appellant did
provide a reasonable and acceptable explanation for her absence
and
that she was as a result not in contempt of court.
[50]
There was merit in the appeal against the contempt of court
conviction. I am of the view that the court
a
quo
erred in finding the second appellant guilty of contempt of
court.
[51]
In the premises the following order is made:
1.
The first and second appellants' appeal against all the convictions
succeeds.
2.
The order of the trial court is set aside and substituted by the
following order:
"The
first and second accused are found not guilty on all counts and are
discharged."
3.
The second appellant's appeal against the conviction of contempt of
court succeeds.
4.
The order of the trial court is set aside and substituted with the
following order:
"The
accused is found not guilty of contravening section 170 of the
Criminal Procedure Act 52 of 1997 and is discharged."
______________________
E.K.
Tsatsi
‘
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered,
______________________
E.M.
Kubushi
JUDGE
OF
THE HIGH COURT
Appearances:
On
behalf of the appellant:
Adv.J C Klapper
Instructed by:
PIETERSE A CURLEWISS INC.
Pretoria
On
behalf of the respondent:
Adv J M Ferreira
Instructed by:
DIRECTOR OF PUBLIC
PROSECUTIONS
Presidential Building
Pretoria
[1]
2005 (
1)
SACR 415
(SCA) paras
5 and 6.