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[2015] ZAFSHC 98
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Mohoje v Visser and Another (A249/2014) [2015] ZAFSHC 98 (14 May 2015)
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FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No. : A249/2014
In the matter between:-
KGOPHOTSHA
PETRUS MOHOJE
…..............................................................................
Applicant
and
REGIONAL
MAGISTRATE PJ VISSER
…................................................................
1
st
Respondent
THE DEPUTY DIRECTOR OF PUBLIC
PROSECUTIONS FREE STATE,
BLOEMFONTEIN
…....................................................................................................
2
nd
Respondent
CORAM:
DAFFUE, J
et
WILLIAMS, AJ
JUDGMENT BY:
DAFFUE, J
HEARD ON:
13 APRIL 2015
DELIVERED ON:
14 MAY 2015
I
INTRODUCTION
[1] This is a review application brought
in terms of the provisions of High Court Rule 53. It concerns a
judgment of a regional
court magistrate who convicted the accused
person on two counts of rape and sentencing him to 10 years’
imprisonment on each
count, whilst ordering that 8 years in respect
of count 2 would serve concurrently with the sentence imposed on
count 1.
The effect hereof is that the accused person was
sentenced to an effective period of 18 years’ imprisonment.
II
THE PARTIES
[2] The accused person, Kgophotsha
Petrus Mohoje, is the applicant in the review proceedings before us.
Adv N J G Dreyer appeared
for the applicant. Regional court
magistrate P J Visser who has been cited as first respondent does not
oppose the review
application and a notice to abide was filed on his
behalf. Mr Visser’s affidavit explaining the events
leading to the
convictions and sentences form part of the record
before us.
[3] The Deputy Director of Public
Prosecutions, Free State Province (“the DPP”), is cited
as second respondent.
The application is opposed and reliance
is placed on two affidavits, one by Mr Tshepo Milton Mosethe, the
attorney employed by
Legal Aid South Africa, (Bethlehem Justice
Centre), who appeared on behalf of applicant in the regional court
and the other by
Mr CHJ Brits, the prosecutor at the time. Adv
Chalale appeared on behalf of the DPP.
III
THE RELIEF SOUGHT
[4] Applicant seeks an order in the
following terms:
“
1.
That the judgment and sentence given in the criminal proceedings
before the First Respondent in Case Number SH04/2013 be set
aside and
referred back for trial.”
Applicant indicated
in the notice of motion that in the event of the application being
opposed, he would seek an order that any
of the respondents opposing
the application be ordered to pay the costs of the application.
However during argument Mr Dreyer
made it clear that he was not
seeking costs against the DPP.
[5] A condonation application was lodged
by the DPP, seeking condonation for the late filing of the answering
affidavits.
Adv Mohlala deposed to the founding affidavit in
the condonation application and attached the affidavits of the
attorney and prosecutor
to that application. The two gentlemen
were not called upon to deal with the applicant’s averments in
the usual order
and to admit or deny particular allegations.
They merely gave general versions of the events that took place on
the relevant
day.
IV
FACTUAL BACKGROUND
[6] The factual background which is
mostly common cause is provided
infra
. In so far as
there is a dispute between the parties in respect of specific events
or facts, this will be indicated.
[7] Applicant was arraigned in the
regional court in Senekal on two counts of rape. He was at all
relevant times represented
by Mr Mosethe, an attorney and an employee
of Legal Aid South Africa as indicated above. The record of
proceedings in the
regional court forms part of the evidential
material before us and is not in dispute.
[8] On 8 May 2014 applicant pleaded not
guilty to both charges and made the following plea explanation
through his attorney which
was confirmed by him at the request of the
regional court magistrate:
“
Your
Worship, in respect of both counts the defence would plead consent
and as such does not dispute the contents of the J88 as
well as the
DNA report in possession of the state.”
Consequently the J88
was handed in as exhibit “A” and the DNA analysis as
exhibit “B”.
[9] The prosecutor did not call the
complainant as first witness, but a Ms F[…] R[…].
She testified about an
assault by applicant on the complainant, her
friend. She was not led by the prosecutor about any reports
made to her by the
complainant, but in cross-examination she stated
the following:
“
When
I arrived at D[…]’s (the complainant) place, she at some
stage cried and complained that the accused person had
raped her as I
heard before from T[…] that the complainant complained that
the accused person had raped her.
When she complained of being raped, did
you or T[…] advise her to go and open a case? … Yes.”
The witness testified
that she had been informed of a cellphone recording, but that she
never listened to the recording.
[10] After completion of the evidence of
the witness, the prosecutor sought a postponement by agreement with
the defence attorney
to 30 July 2014, the reason being that a
transcript of the recorded conversation was required. Mr
Mosethe requested further
particulars before the commencement of the
trial, but the State did not provide him with either a copy of the
cellphone recording
referred to by the prosecutor during the first
witness’ cross-examination or a transcript thereof. He
needed time to
listen to the recording and to read the transcript
that had not been typed at the time.
[11] On 30 July 2014 the matter
resumed. According to the transcript of the court record the
prosecutor indicated to the regional
court magistrate that the
defence attorney would like to address the court on formal admissions
to be made. Mr Mosethe made
the following statement:
“
Earlier
this morning, your Worship, you did indicate that you (sic) received
certain evidence which I wanted to discuss with the
accused and, your
Worship, I have looked at the evidence and discussed the evidence
with the accused and as a result the defence
makes the following
admissions in terms of section 220 of the Criminal Procedure Act.”
[12] The admissions were read out by Mr
Mosethe and the applicant confirmed this whereupon the admissions
were formally recorded
as such in terms of section 220 of the
Criminal Procedure Act.
[13] The transcript of the cellphone
recording was handed in by agreement as exhibit “B”.
It should have been
“C”. Both the prosecutor and Mr
Mosethe confirmed on a question of the regional court magistrate that
the cellphone
recording was made during the incident, referring to
the rape, and Mr Mosethe went further to confirm that he had listened
to the
recording and that it corresponded with the transcription
thereof. Thereafter the State closed its case. The
defence
case was closed as well whereupon the regional court
magistrate convicted applicant based on the evidence led, the change
of his
plea to guilty on both rape counts and the admissions made by
him. I confirm that, contrary to his plea explanation,
applicant
admitted when he changed his plea that he had had sexual
intercourse with complainant without her consent and that he had
acted
unlawfully with the necessary intention.
[14]
It is applicant’s case in the review application before us that
he was convicted and sentenced
“
after
I was forced by my legal representative to change my plea from not
guilty to one of guilty”.
[15] Strangely enough and
notwithstanding the allegation of duress by the legal representative,
the grounds of review relied upon
include
inter alia
an
allegation that the regional court magistrate committed several gross
reviewable irregularities which constituted judicial misconduct.
Mr Dreyer conceded during argument that the regional court magistrate
did not commit any irregularities at all.
[16]
It is applicant’s case that on the morning of 30 July 2014 Mr
Mosethe, after reading a transcript of the cellphone recording
which
the applicant had given to the police earlier, advised him to plead
guilty, but that he refused. Mr Mosethe then informed
him that
he was going to see the regional court magistrate in chambers.
After a while he returned to applicant, informing
him that the
regional court magistrate granted him permission to withdraw from the
case, but that the regional court magistrate
indicated that the case
would proceed the same day with or without legal presentation.
Mr Mosethe also told him that because
he did not want to plead
guilty, he would be sentenced to life imprisonment. This caused
applicant to be in a
“
state
of panic”
and
as a result, he
“
agreed
to plead guilty because I believed at that stage that I will go to
prison for life if I refused”. Applicant further
states
the following:
“
I
would never have changed my plead (sic) of not guilty to one of
guilty if I was aware of the fact that the court will afford me
the
opportunity to obtain a new legal representative.”
[17]
In the affidavit filed on behalf of the regional court magistrate no
reference was made to the allegations contained in the
founding
affidavit of the applicant. Mr Visser recorded the material
events in chronological order from the start of proceedings
on 8 May
2014 until the convictions and imposition of sentences on 30 July
2014. He mentions that Mr Mosethe regularly appears
before him,
that
“
he
is an experienced attorney who always present (sic) his case with
diligence and a high degree of ethics.”
The regional court
magistrate furthermore confirms the version as set out in the record
of proceedings to which I have referred
earlier. Although the
version of applicant was not dealt with at all, it is clear from the
version of the regional court
magistrate that Mr Mosethe never
indicated that he had reason to withdraw and that he was warned that
in such a case the regional
court magistrate would proceed with the
matter that day whether or not applicant obtains new legal
representation.
[18]
Mr Mosethe states the following in the affidavit attached to the
DPP’s condonation application:
“
The
recording itself was against Mr Mohoje as it was incriminating him to
the offence. I then advised my client with regard
to the
recording and its legal implications. Client then instructed me
that under this circumstances he intend (sic) changing
his plea to
one of guilty seeing that the recording which he handed to the police
has the great potential of damaging his case.
… We then
began to draft the admissions which client confirmed and signed.
We read the admissions into the record
and the client confirmed them
on record. He was accordingly found guilty and sentenced. …
I did not in any way undermine
my professional duties and ethics.
I did not influence client to change his plea. His sudden
change of plea was influenced
by the contents of the recording which
he made and gave to the police.”
It needs to be
mentioned that Legal Aid South Africa filed a further affidavit by Mr
Mosethe, making it clear that it wanted to
set the record straight
and was not opposing the application. In this affidavit Mr
Mosethe confirms the first affidavit,
but deals more specifically
with the particular averments of applicant. I must also point
out that Mr Dreyer did not object
to the filing of any of the
affidavits and the condonation application was also not opposed.
Mr Mosethe attached to this
last affidavit his consultation notes
reflecting the admissions to be made and which document was signed by
applicant. According
to him the signature appearing at the
bottom of page two of the written admissions on page 96 of the record
is that of applicant.
I pointed out the signature to Mr Dreyer
during his argument and he had to concede that it appears to be that
of the applicant
as is evident from the founding affidavit. The
prosecutor’s version is in harmony with those of the attorney,
the regional
court magistrate and the record of proceedings.
Applicant did not file a replying affidavit to deal with any of the
averments
made by the regional court magistrate, the attorney or the
prosecutor.
[19]
I have had a look at the transcript of the cellphone recording made
by applicant. It is clear that the recording does
not commence
at the initial encounter between the two parties. It is also
clear that applicant tried his best to put leading
questions to the
complainant,
inter
alia
insisting that she should tell him that she liked him. It is
apparent that applicant believed that the recording would confirm
his
version that he had sexual intercourse with the complainant with her
consent. Unfortunately for him, midway through the
conversation
complainant made the following remark which is indicative of a prior
threat by applicant and negates the version of
sexual intercourse by
consent:
“
Jy
het mos gesê jy gaan my doodmaak.”
V
CERTAIN
LEGAL PRINCIPLES
[20] The leading case relating to the
right to legal representation as envisaged in section 35(3)(f) of the
Constitution is
S v Halgryn
2002 (2) SACR 211
(SCA).
In para [14] Harms JA (as he then was) mentioned the following:
“
[14]
The constitutional right to counsel must be real and not illusory and
an accused has, in principle, the right to a proper,
effective or
competent defence. … Convicted persons are seldom satisfied
with the performance of their defence counsel.
The assessment must be
objective, usually, if not invariably, without the benefit of
hindsight. … The Court must place itself
in the shoes of
defence counsel, bearing in mind that the prime responsibility in
conducting the case is that of counsel who has
to make decisions,
often with little time to reflect.”
[21] Where an accused has not taken any
steps to withdraw his counsel’s mandate and expresses no
disagreement with the conduct
of his case until after the verdict has
been given, he is not entitled to challenge the correctness of the
verdict on appeal on
the ground that his counsel had been negligent
in the conduct of his defence. See
S v Bennet
1994 (1) SACR 392
(CPD) at 397h – 399e.
[22]
In
R v
Matonsi
1958 (2) SA 450
(AD) at 456 Schreiner JA referred with approval to
the following
dictum
in
Swinfen
v Lord Chelmsford,
157 E.R. 1436
at 1449:
“…
.
a counsel has complete authority over the suit, the mode of
conducting it, and all that is incident to it – such as
withdrawing
the record, withdrawing a juror, calling no witnesses, or
selecting such as, in his discretion, he thinks ought to be called,
and
other matters which properly belong to the suit and the
management and conduct of the trial.”
[23]
In
casu
there is no complaint that Mr Mosethe was incompetent, but rather
that he deliberately lied to applicant in order to persuade him
to
plead guilty under duress. However it is apposite to consider
the authorities relating to counsel’s alleged incompetence
as
these may be helpful to adjudicate this application . I refer
to the
dictum
in
Halgryn
supra.
If
complaints are made about the incompetence of counsel, there would be
no finality in a criminal trial until the proficiency of
counsel who
represented the accused and which is complained about after the event
had also been adjudicated upon. See
Bennet
loc cit
at 398g. As mentioned by Borchers J in
S
v Mvelase
2004 (2) SACR 531
(WLD) at 535j it would be
“
a
sad day indeed if a presiding officer were to be required to assume
the incompetence of legal representatives and was thus to
treat the
accused as if he were unrepresented.”
The
dictum
is
explained by the learned judge not to mean that if it is apparent to
the presiding officer that the legal representative is clearly
incompetent, he or she should be inactive, but must inform the
accused and his legal representative about certain aspects of the
law
in order to ensure a fair trial. However these cases should be
the exception and not the norm.
[24]
It is accepted that, within the four corners of the ethics which bind
each defence advocate, counsel is not free to make submissions
designed to destroy his client’s case or which may have that
effect. He is in control of the presentation of the defence
case and he may otherwise bind his client through “vicarious
admissions”, but where he, to the knowledge of the court,
refutes his instructions, he fails to act as a representative.
See:
S v
Mofokeng
2004 (1) SACR 349
(WLD) at 357f. Where an accused entrusts his
defence to his legal representative, he is as a general rule bound by
what his
representative does. This rule was held by Broome JP
in
R v
Muruven
1953 (2) SA 779
(NPD) not to be
“
entirely
inflexible, but it is clear that a very strong case must be made
before a decided case can be reopened on the ground of
an error of
judgment on the part of the legal representative. But for that,
there would be a lack of finality about court
judgments which would
be entirely against public interest”. This
dictum
was cited
with approval in
S
v Chabedi
2004 (1) SACR 477
(WLD) at para [19].
[25]
The applicant wishes to set aside a criminal conviction and sentence
on the ground of irregularity. It is of course trite
that an
irregularity in the conduct of a criminal trial may be of such an
order as to amount
per
se
to a
failure of justice, which vitiates the trial. The applicant
must prove such irregularity on a balance of probabilities.
See
Pretorius
v DPP
2011 (1) SACR 54
(KZP) at para [24]. See also:
Pretorius
v Magistrate, Durban
2013 (2) SACR 153
(KZP) at para [26] and further, in particular paras
[29] and [30]. Contrary to the applicants’ complaint
about lack
of consultation with their legal representative and his
consequent incompetence, the court accepted the attorney’s
version
of the events and found that adequate and proper consultation
took place. The court concluded as follows in para [30]:
“
Now
that this has failed (their constitutional challenge in the court a
quo), and, as per their new-found legal opinion is doomed
to fail on
appeal, it would not be in the interests of justice to allow the
applicants a further opportunity at escaping liability.”
[26]
In casu
the
irregularity upon which the applicant purports to rely is based on
the alleged unethical and deceitful – and not merely
negligent
conduct - of his own legal representative which caused him to change
his plea under duress. The averments relied
upon remind one of
the applicant’s version in
Pretorius
v DPP
supra.
Senior
counsel in that case advised the accused to plead guilty, failing
which he would withdraw from the case. This persuaded
the
accused to plead guilty which he did. He also confirmed
his section 112(2) statement at the request of the presiding
officer.
Sometime after the case was postponed for sentence the accused
lodged an application for review to the High Court,
averring that he
did not act freely and voluntarily when he offered his plea.
The High Court found on the facts that the
accused had a choice to
accept counsel’s advice, or to reject same, thus terminating
counsel’s mandate, but he decided
“…
to
place his fate on, and accepted, that advice.”
The application was
dismissed.
[27] In the event of a factual dispute
the application should be adjudicated on the DPP’s version.
The
Plascon-Evans
rule is applicable. It is only
possible to adjudicate the application on applicant’s version
if it is found that the
DPP’s version is far-fetched, untenable
or so improbable that it should be regarded as false.
[28] Mr Dreyer referred us in his heads
of argument to the situation where an accused had pleaded guilty, but
wished to tender a
plea of not guilty in accordance with the
provisions of section 113 of the Criminal Procedure Act based on the
accused person’s
version that he pleaded guilty under duress.
It is correct that in such a case the accused does not carry any
onus, but merely
has to show that his proffered explanation was
reasonably possible. See:
S v Botha
1990 (1) SA
665
(TPD) at 674F. In
casu
the applicant pleaded not
guilty, relying on consent, but eventually pleaded guilty once the
transcript of the cellphone recording
was made available and his
attorney had an opportunity to listen to the recording, the
authenticity of which was never in dispute.
Unlike the
situation that arose in
Botha
supra,
applicant
who seeks relief in an application for review must prove his case, to
wit duress and a consequent fatal irregularity in
the criminal
proceedings on a balance of probabilities.
[29]
I conclude this chapter on applicable legal authorities with a
reference to the full bench judgment in
S
v Toba
2008 (1) SACR 415
(ECD), although it is acknowledged that the facts
in that matter are not on all fours with the facts
in
casu.
An experienced attorney appearing for the applicants in their
criminal trial decided not call them to testify in their defence.
They were eventually convicted. Their appeal and accompanying
review application were dismissed notwithstanding the fact
that the
attorney refused to submit an affidavit in opposition of the review
application. In that matter the applicants conceded
that the
decision not to call them as witnesses was discussed by the attorney
with them and that he had advised them not to testify.
The High
Court found that the only inference to be drawn from this is that the
attorney thought that it would be dangerous for
them to testify as
they would not stand up to cross-examination. Their attorney,
aware of the danger of calling them as witnesses,
deliberately
decided not to call them, but to close their case. Consequently
the court found that it had not been established
that the applicants
did not get a fair trial. The court referred with
approval at p. 426a-b to the US Supreme
Court judgment,
Strickland
v Washington
466 US
688
(1984) at 689 where the court stated the following:
“
Judicial
scrutiny of counsel’s performance must be highly deferential.
It is all too tempting for a defendant to second-guess
counsel’s
assistance after conviction or adverse sentence, and it is too easy
for a court, examining counsel’s defence
after it has been
unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable.”
VI
EVALUATION OF THE FACTS AND LEGAL
SUBMISSIONS
[30] It is accepted that counsel or an
attorney appearing for an accused may and should give his advice in
strong terms, although
there can be no doubt that the ultimate
choice, and a free choice, is in the accused person. See
Pretorius v DPP
loc cit
at para [27].
[31] An accused person that has been
properly and competently counselled about the possibility of a
sentence of life imprisonment
if he pleaded not guilty and where he
has been given the choice of rejecting counsel’s advice and of
accepting other legal
representation, should not complain afterwards
if he had decided to accept the advice. If a decision had been
voluntarily
and intelligently made and it revealed no irregularity in
counsel’s conduct, there is no ground to set aside the trial
court’s
judgment on review. Although the facts
in casu
differ somewhat from those in
Pretorius v DPP
loc
cit,
I am of the view that applicant had a choice to reject the
advice and to terminate Mr Mosethe’s mandate, even if his
version
as to what the attorney told him, can be accepted.
[32] Mr Dreyer argued that something
must have triggered the decision to change the plea of not guilty to
guilty in circumstances
where, on applicant’s version, he
stated under oath that notwithstanding the transcript of the
recording being read to him,
he refused to change his plea.
This is indeed applicant’s version, but it must still be
considered with the totality
of the evidence and the rule in
Plascon-Evans
must also be applied. Mr Dreyer’s
argument that the matter should be referred back to the trial court
in order to hear
evidence of the complainant and the applicant so
that the transcript could be put in context, should be adhered to
only if we are
satisfied that he has proved his case.
[33] We are confronted with two
diametrically opposed versions. The applicant’s case is
that he was confronted by his
attorney, stating that he would have to
withdraw and that the regional court magistrate indicated in chambers
that in the event
of a withdrawal, the matter would proceed that day
even if it meant that applicant would be unrepresented during the
remainder
of the trial and that life imprisonment will (not might) be
imposed upon him.
[34] There is no doubt that insofar as
the complainant was raped twice by the same person, such person and
the applicant in
casu
was faced with the possibility that life
imprisonment as a minimum sentence might be imposed upon him.
It would not be wrong
for the attorney alerting him to that fact and,
in any event, he was duty-bound to inform him accordingly.
[35] Mr Dreyer conceded that no
irregularity was committed by the regional court magistrate.
The DPP’s version is confirmed
by objective evidence, the
record of the proceedings, and also by the regional court
magistrate. Mr Mosethe is adamant that
he never forced
applicant to plead guilty. He mentions the following in the
affidavit presented by Legal Aid South Africa:
“
Had
I noted any discomfort on the Applicant I confirm that I would have
proceeded with the trial on the Applicant’s plea of
not
guilty.”
The attorney makes it
clear that he did not have anything to gain if applicant was
convicted of the offences charged with.
There is no doubt,
according to the attorney and as the record reflects, that the
applicant did not dispute the authenticity of
the recording or its
admissibility and that the attorney advised applicant of the
incriminating evidence contained in the recording
and the legal
implications thereof. According to Mr Mosethe applicant’s
sudden change of his plea was influenced by
the incriminating
evidence contained in the recording and his advice regarding the
legal implications.
[36] It is therefore necessary to
consider the two diametrically opposed versions in order to establish
whether applicant is entitled
to the relief claimed. There are
no improbabilities in the version of the DPP, and in particular that
of Mr Mosethe and it
is not possible to find that this version is
far-fetched, untenable or false. Bearing in mind the
Plascon-Evens
rule it is unnecessary to make any
finding as to the improbability or credibility of applicant’s
version. If the matter
is evenly balanced, applicant must
fail. However I am of the view that it is necessary to mention
that applicant probably
believed that the cellphone recording would
prove his version that he had sexual intercourse with the complainant
with her consent.
It is clear that the recording was not made
from the initial encounter and it is furthermore clear that applicant
tried his level
best to influence complainant to say whatever he
wished her to say. Unfortunately for him complainant mentioned
midway through
the recording that applicant had threatened to kill
her. The transcript is in my view no proof of a sexual
encounter between
two lovers or two consensual partners, but quite
the contrary. I am not prepared to accede to Mr Dreyer’s
request
that the matter be referred back to the regional court for
the trial to continue before the regional court magistrate and the
leading
of the evidence of the complainant and applicant in order to
establish the truth about or alleged real context of the conversation
between the two parties.
[37] The applicant went further in his
founding affidavit to state that he was in a state of panic when he
heard that the regional
court magistrate granted permission to his
attorney to withdraw from the case and that the matter would proceed
that day with or
without a legal representative. Furthermore,
applicant would be - not might be - sentenced to life imprisonment.
This
version is so improbable that it can safely be rejected as
false. I have reason to believe that if it was really the
intention
of the regional court magistrate to finalise the trial in
the event of Mr Mosethe withdrawing from the case, he would have
informed
the applicant accordingly in open court and after allowing
him an opportunity to address him in that regard.
[38] There is no acceptable evidence
that Mr Mosethe acted unethically or that his conduct constituted
judicial misconduct that
should be regarded as a gross reviewable
irregularity. If applicant was not satisfied with the advice
given at that stage
of the proceedings, he should have declined to
make the admissions and should have terminated the mandate of his
attorney.
He did not do so and must bear the consequences.
It would be too easy for convicted persons to show dissatisfaction
with
their legal representatives by attacking the integrity of legal
representatives once the criminal trials have been concluded and
for
the court to come to their “rescue” on their mere
ipse
dixit.
[39] The applicant has not proven on a
balance of probabilities that any reviewable irregularity has been
committed. There
is no merit in the application and it should
be dismissed. Neither the applicant, nor the DPP sought costs
orders in the
event of they being successful and consequently no
costs order shall be made.
VII
THE ORDERS
[40] The following orders are made:
1.
Condonation is
granted for the late filing of the second respondent’s
answering affidavits.
2.
The
applicant’s application for review is dismissed.
3.
The
convictions and sentences of the regional court in case number
SHO4/2013 are confirmed.
_____________
J. P. DAFFUE, J
I concur.
_______________
A. WILLIAMS, AJ
On behalf of applicant: Adv.
N.
J. G. Dreyer
Instructed
by:
Jacobs
Attorneys
BLOEMFONTEIN
On behalf of respondent: Adv.
Chalale
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN