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[2009] ZAGPJHC 5
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Mvu v Minister of Safety and Security and Another (07/20296) [2009] ZAGPJHC 5; 2009 (2) SACR 291 (GSJ) ; 2009 (6) SA 82 (GSJ) (31 March 2009)
Links to summary
IN
THE HIGH COURT OF SOUTH AFRICA
SOUTH
GAUTENG, JOHANNESBURG
CASE NO: 07/20296
REPORTABLE
In
the matter between:
MNONELELI
MAXWELL MVU
Plaintiff
and
MINISTER
OF SAFETY AND SECURITY
First
Defendant
DIGNITY
GABELA
Second Defendant
_________________________________________________________________________
JUDGMENT
_________________________________________________________________________
WILLIS J:
[1]
This is a claim for damages consequent upon an alleged unlawful
arrest
and
detention. It is common cause that the plaintiff was arrested,
without a warrant, by the second defendant, acting within the course
and scope of his employment with the South African Police Service,
during the night of 23
rd
September, 2004 at the Moroka Police Station, Soweto, held in custody
there in the so-called “police cells” and set
free the
following day in the afternoon when he was “released on
warning”. He was charged with malicious injury to
property. The
case turns on whether the arrest
and
detention were
unlawful
1
.
[2]
The plaintiff is himself an Inspector in the South African Police
Service, attached to the Organised Crime Unit and is based
in
Mthatha. He has been a police officer since 1990. At the time of his
arrest and detention, he held the same rank as Inspector
but was
attached to the Detective Branch in Mthatha. Since 1999 the plaintiff
has been divorced from the mother of his twin daughters,
T and T M
who lived with their mother in Chiawelo. At the time of the
plaintiff’s arrest, these two children were 15 years’
old. The plaintiff enjoyed a civil relationship with the mother of
these two children. The twins regularly visited him in Transkei
and,
from time to time, he would visit them here in Gauteng. At the time
of the incidents giving rise to this claim, the plaintiff
was in
Gauteng on work-related business and was based at the Sandton Police
Station. He took advantage of the opportunity to visit
his daughters.
[3]
It is common cause that the plaintiff became incandescent with rage
with his daughters when he discovered that they had cellular
telephones (“cellphones”) which they had received as a
result of a “love relationship”. He took the cellphones
from them and threw them to the ground, seriously damaging the
cellphones in the process. The plaintiff has added an embellishment
to the story: that he believed, by reason of what he had been told by
his daughters’ mother, that the cellphones had been
given to
his daughters by “gangsters” in order to lure them into
drug trafficking. This was a further reason why he
had acted as he
did: he wanted to put an end to this unwholesome relationship. The
plaintiff says that he informed the second defendant
about this
aspect of the suspected “gangsterism” but the second
defendant denies this. Not much really turns on the
point but I shall
deal with it later.
[4]
The plaintiff’s daughters, no doubt distressed, like most
teenagers, at being deprived of cellphone contact with the world,
went with their uncle, Ntlahla Nhlapho, to lay a charge of malicious
injury to property against the plaintiff, at the Moroka police
station on 23
rd
September, 2004. The second defendant was seized with the matter.
Acting on information given to him by the plaintiff’s
daughters, the second defendant telephoned the plaintiff at the
plaintiff’s cellphone at about 9 pm. The plaintiff immediately
travelled from Sandton to meet the second defendant. The second
defendant decided, in view of the fact that it was common cause
that
the plaintiff had damaged his daughters’ cellphones as he did,
that he should arrest the plaintiff, which he did at
about 10pm. The
second defendant then proceeded to incarcerate the plaintiff in the
police cells where the plaintiff spent the
night with about six other
men, among whom were suspected rapists and robbers. The plaintiff,
unsurprisingly, found this deeply
distressing and humiliating. The
second defendant seemed to believe that he had no option but to
detain the plaintiff.
[5]
There is a dispute as to whether the plaintiff did, in fact, produce
his “appointment certificate” as police officer
to the
second defendant. This certificate is not a “piece of paper”.
Instead it is a plastic card indistinguishable
in shape, size and
texture from the plastic credit cards, debit cards, membership cards,
etc of which the court believes it may
fairly take judicial notice
festoon the wallets of almost all the citizenry nowadays. Again, not
much turns on this factual dispute
as the second defendant admits
that not only did the plaintiff inform him that he, the plaintiff,
was an Inspector, but also that
the plaintiff’s daughters told
him that this was the case. Although the second defendant seemed to
have changed his version
as to whether or not the fact of plaintiff
being a police officer was an easily verifiable fact, it is common
cause that the second
defendant removed from the plaintiff his
possession of his police-issue firearm before placing him in the
police cell. In other
words, the act of taking possession of the
firearm from the plaintiff would, in itself, have alerted the second
defendant to the
fact that the plaintiff was, in all probability, a
police officer. It is scarcely probable that a person in unlawful
possession
of a police-issue firearm would calmly present himself to
the police station accordingly. I shall also deal with my finding on
the factual dispute relating to the plaintiff’s production of
his “appointment certificate” later.
[6]
The plaintiff was arraigned on a charge of malicious injury to
property in the magistrate’s court for the district of
Johannesburg in Protea, Soweto on 24
th
September, 2004 and released on warning. He was warned to appear in
court on 27
th
September, 2004. On that date, the trial was postponed to 16
th
November, 2004. On 16
th
November, 2004, the matter was struck from the roll. The charge was
reinstated and the trial set down for 5
th
October, 2005. On 6
th
October, 2005, the plaintiff was found not guilty and discharged at
the close of the State’s case in terms of
section 174
of the
Criminal Procedure Act No 51 of 1977
, as amended (“the Act”).
It is not clear why this occurred but it is, ultimately, irrelevant
to the determination of
the case.
[7]
Having regard to the principles and criteria set out in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie
,
2
A
frican
Eagle Life Assurance Co Ltd v Cainer
,
3
National Employers’
General Insurance v Jagers
,
4
Baring Eiendomme Bpk v Roux
,
5
Koster Koöperatiewe
Landboumaatskappy Bpk v Suid-Afrikaanse Spoorweë en Hawens
,
6
National Employers
Mutual General Insurance Association v Gany
7
and
AA Onderlinge Assuransie Assosiasie v De Beer
,
8
I am of the view that the plaintiff neither acted as he did because
he was worried about his daughters being lured into “gansterism”
nor did he tell the second defendant this. As the second defendant
observed, if this is indeed what he believed, the most obvious
way of
dealing with the matter, especially as he was an experienced police
officer, would have been to enlist the help of the police
themselves.
Moreover, intact cellphones would have provided valuable records of
telephone calls that could have assisted in tracking
down these
“gansters”. The plaintiff, when pressed to explain why he
did not act accordingly, could give no satisfactory
answer. In
Ocean Accident and Guarantee Corporation Ltd v Koch
9
Holmes JA said:
As
to the balancing of probabilities, I agree with the remarks of Selke
J, in
Govan
v Skidmore
1952 (1) SA 732
(N) at 734, namely
“…
in
finding facts or making inferences in a civil case, it seems to me,
that one may, as Wigmore conveys in his work on
Evidence,
3
rd
ed., para 32, by balancing probabilities select a conclusion which
seems to be the more natural or plausible, conclusion from amongst
several conceivable ones, even though that conclusion is not the only
reasonable one.
”
This
dictum
has
been referred to with approval in innumerable cases.
10
It hardly needs to be added that “plausible” is not here
used in its negative sense of specious, but in the connotation
which
is conveyed by words such as acceptable, credible, or suitable.
11
Having regard to the facts, disputed and undisputed, set out above, I
consider the most “voor-die-hand liggende en aanvaarbare
afleiding”
12
and the more plausible, acceptable and credible conclusion, on a
balance of probabilities, is that the plaintiff acted as he did,
in
regard to his daughters’ cellphones, in a moment of
over-zealousness and perhaps even the over-protectiveness that is
common among fathers when their daughters are teenagers.
[8]
Employing the same fact-finding tools set out in paragraph [7] above,
I conclude that the plaintiff did show his
“appointment
certificate” to the second defendant at the Moroka police
station. It is common cause that the plaintiff
informed the second
defendant of his status as an Inspector in the South African Police
Service. In all the circumstances of this
case, it is hardly credible
that the plaintiff would not have demonstrated this not unimportant
fact through the simple expedient
of producing his card known as an
“appointment certificate”.
[9]
In terms of
section 40(1)(b)
of the Act:
(1)
A peace officer may without a warrant arrest any person-
…
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1,
13
other than an offence of escaping from custody.
In
Duncan v Minister of
Law and Order
14
,
Van Heerden JA said that, in order to enjoy the protection of this
section, an arrestor must establish the following four requirements:
15
He is a peace
officer:
He must entertain
a suspicion;
It must be a
suspicion that the arrestee committed an offence referred to in
Schedule 1 of the Act;
The suspicion
must rest on reasonable grounds.
The
fourth requirement, i.e. that the suspicion must rest on reasonable
grounds, is objectively justiciable: “...the test
is not
whether a policeman believes that he has reason to suspect, but
whether on an objective approach, he in fact has reasonable
grounds
for his suspicion”.
16
Furthermore, not only must the arrestor prove that the had
reasonable grounds for believing that the arrestee has committed an
offence listed in the Schedule, but also that he had reasonable
grounds for believing that the arrestee had the mental element
for
committing the offence.
17
“Malicious injury to property” is an offence appearing in
Schedule 1 of the Act. Mr
Henana
,
who appeared for the plaintiff, accepted that he could not
successfully argue, in the circumstances of the matter, that the
second
defendant had acted
mala
fide
. Counsel for
the plaintiff went on to argue, albeit faintly, that the second
defendant should have investigated the matter further
before
arresting the plaintiff. Against the background of events and the
facts that were common a cause at the time, it is clear
that the
second defendant is protected by the provisions of section 40 (1) (b)
of the Act and that the arrest was not unlawful.
That is not the end
of the matter. The claim is based not only on an alleged unlawful
arrest but also upon alleged unlawful detention.
That there is an
important distinction between the two is, in my respectful opinion,
not properly understood by many - and it is
not only police officers
who have erred in this regard.
[10]
In
Hofmeyr v Minister
of Justice and Another
18
King J, as he then
was, held that even where an arrest is lawful, a police officer must
apply his mind to the arrestee’s detention
and the
circumstances relating thereto and that the failure by a police
officer properly to do so, is unlawful. The Minister’s
appeal
was unanimously dismissed by what was then known as the Appellate
Division of the Supreme Court.
19
It seems to me that, if a police officer must apply his or her mind
to the circumstances relating to a person’s detention,
this
includes applying his or her mind to the question of whether
detention is necessary at all. This, it seems to me, and in my
very
respectful opinion, enables one to get a better grip on an issue
which has been debated in the law reports in recent cases
such as
Minister of
Correctional Services v Tobani
;
20
Ralekwa v Minister of
Safety and Security
;
21
Louw v Minister of
Safety and Security and Others
;
22
Charles v Minister of
Safety and Security
;
23
Olivier v Minister of
Safety and Security
24
and
Van
Rensburg v City of Johannresburg
.
25
On the question of unlawful detention,
per
se
, as a concept to
be considered separately from the question of arrest, it is, in my
respectful view, instructive to read the
Tobani
case in which Jones
and Leach JJ, together with Govender AJ, upheld, in an appeal to the
full court, the judgment of Froneman J.
I also agree with the general
approach of Horwitz AJ in the
Van
Rensburg
case even
though, in that case, the facts are distinguishable from the present
one at least inasmuch as a warrant for arrest had
been issued.
[11]
Our Constitution gives everyone the right to:
freedom
and security of the person, which includes the right-
not
to be deprived of freedom arbitrarily or wihout just cause;
not
to be detained without trial.
26
Moreover,
section 35 of the Constitution provides detailed rights to arrested,
detained and accused persons, including the right
to be released if
the interests of justice permit and upon reasonable conditions, and
to humane conditions of detention.
[12]
“If the sentence likely to be imposed upon conviction in any
case will be in the form of a fine or one other than imprisonment
it
is highly undesirable that the accused person should be subjected to
pre-trial detention”.
27
I agree in a resolute degree. In this particular case, Mr
Nkosi
,
who appeared for the defendants, very fairly and correctly conceded
that it was most undesirable, taking into account the plaintiff’s
standing as a police officer (more particularly, one of long service
and very respectable rank), his entirely cooperative attitude
and the
circumstances relating to the commission of the alleged offence, that
the plaintiff should not have been detained at all,
never mind kept
for some 17 hours in a police dell with suspected rapists and
robbers. Mr
Nkosi
also accepted that, viewed objectively, the second defendant could
have not only have applied his mind to avoiding the detention
of the
plaintiff and but could indeed also have avoided detaining him.
[13]
Section 59 (1) (a) of the Act provides as follows:
An
accused person who is in custody in respect of any offence, other
than an offence referred to in Part II or Part III of Schedule
2 may,
before his or her first appearance in a lower court, be released on
bail in respect of such offence by any police official
of or above
the rank of non-commissioned officer, in consultation with the police
official charged with the investigation, if the
accused deposits at
the police station the sum of money determined by such official.
“
Malicious
injury to property” is not an offence referred to in either
Part I or Part II of Schedule 2 of the Act. During the
course of
argument there appeared to be some degree of confusion and
uncertainty as to whether the second defendant, as an Inspector,
is a
“commissioned officer” or a “non-commissioned
officer” or neither and, accordingly, whether or not
the second
defendant was a police official
of
or
above
the rank of a non-commissioned officer in terms of this section. The
Act provides no definitions or either “commissioned
officer”
or a “non-commissioned officer”. Section 1 (the
definitions section) of the
South African Police Service Act, No. 68
of 1995
provides no definition of a “non-commissioned officer”
but defines a “commissioned officer” as meaning
“a
commissioned officer appointed under
section 33(1)
(v)”.
Reference to
section 33(1)
(v) provides no further assistance in the
solving of the problem. As far as I am aware, a “commissioned
officer” in
the police service is an officer of or above the
rank of Inspector and a “non-commissioned officer” is a
police officer
under
the rank of
Inspector. In any event, whatever the correct position as to who is
or is not either a “commissioned officer”
or a
“non-commissioned officer”, it is common cause that there
is always, at the police station in question, a police
officer above
the rank of non-commissioned officer, who is either on duty or “on
call”.
Section 50
(3) of
the Act provides as follows:
Subject
to the provisions of subsection (6),
28
nothing in this section shall be construed as modifying the
provisions of this Act or any other law whereby a person under
detention
may be released on bail or on warning or on a written
notice to appear in court.
Counsel
for parties were
ad
idem
that the second
defendant should either have released the plaintiff on warning or
arranged with a commissioned officer for this
to have been done. The
detention of the plaintiff was accordingly wrongful and unlawful.
[14]
Counsel from both sides referred me to various cases relevant to the
question of
quantum
. I
have read others as well. The court also had occasion to refer to
these cases in the matter of
Seymour v
Minister of Safety and Security
.
29
These, in chronological order, are the cases in question:
May
v Union Govt
.;
30
Solomon v Visser and Another
;
31
Donono v Minister of Prisons
;
32
Areff v Minister van Polisie
;
33
Minister van Polisie en ’n Ander v
Gamble en ’n Ander
;
34
Minister van Wet & Orde v Van Den Heever
;
35
Stapelberg v Afdelingsraad Van Die Kaap
;
36
Ramakulukusha v The Commander Venda National
Force
;
37
Ochse v King Williams’ Town
Municipality
;
38
Thandani v Minister of Law & Order
;
39
Mthimkulu and Another v Minister of Law and
Order
;
40
Tödt v Ipser
;
41
Moses v Minister of Law and Order
;
42
Bentley and Another v Mc Pherson
;
43
Themba v Minister of Safety and Security
;
44
Tobani v Minister of Correctional Services
NO
;
45
Liu Quin Ping v Akani Egoli (Pty) Ltd t/a Gold
Reef City Casino
;
46
Manase v Minister of Safety and Security and
Another
.
47
Each case must, however, be decided on its own merits and the facts
in each of the above cases are distinguishable from the facts
in the
present one. Moreover, it must be borne in mind that these cases
relate to unlawful arrest more than they do to the somewhat
narrower
issue of unlawful detention.
[14]
In the
Seymour
case,
48
I joined hands with the learned judge in the
Ramakulukusha
case
49
in regard to the surprise which he expressed at “the
comparatively low and insignificant awards made in Southern African
courts for infringements of personal safety, dignity, honour,
self-esteem and reputation.”
50
I also expressed the view that the courts should move, however
glacially, to reflect in their awards for damages in cases of this
nature, a change of values.
51
When the
Seymour
case went on appeal, these views did not meet with favour.
52
My award of R500 000 for five days of detention was reduced to R90
000.
53
Suitably chastened, and mindful of the well-known case of
Cassell
& Co Ltd v Broome
54
in which the then Lord Chancellor of England, Lord Hailsham of St
Marylebone, stressed the importance of judicial precedent in
a
hierarchy of courts and gave a memorable account of why this should
be so, I shall walk quietly and, I hope, in the shade, on
this path
created by precedent. The
Cassell
case has been
referred to with approval by the Supreme Court of Appeal in the
matter of
S v
Kgafela
.
55
[15]
In
Seria v Minister
of Safety and Security
56
Meer J awarded R50 000. Since the appeal in the
Seymour
case, my brother Bertelsmann J awarded R75 000 in the
Louw
case,
57
my brother Horn J R50 000 in the
Olivier
case
58
and Horwitz AJ R75 000 in the
Van
Rensburg
case.
59
Counsel for the parties were
ad
idem
that, mindful
of precedent, and the facts and circumstances of this particular
case, R30 000 would be an appropriate award in this
matter.
[16]
In the
Hofmeyr
case,
60
although the court made an award within the jurisdiction of the
magistrate’s court, it nevertheless granted costs on the
higher
court scale. A similar approach was adopted in the
Seria
case,
61
the
Louw
case,
62
the
Olivier
case
63
and the
Van Rensburg
case.
64
The underlying principle would appear to be the importance which the
courts attach to questions of unlawful arrest and detention.
Mr
Nkosi
accepted that he
could not argue against costs following the result and being awarded
on the High Court scale.
[17]
This case has a rare, but happy, result: in the end, counsel for the
parties and the court were all in agreement. An appeal
is therefore
unlikely. Counsel for both sides requested that I should deliver a
“reportable” judgment in order to encourage
a wider
awareness that where a lawful arrest has been made, it does not
follow automatically that such person is to be detained
until he or
she may be brought to court at the earliest opportunity: a proper
discretion is always to be exercised as to whether
detention is
indeed appropriate. I have been pleased to oblige such a politely
directed and reasonable request by counsel.
[18]
The following order is made:
The
first defendant is to pay the plaintiff-
The
sum of R30 000 (thirty thousand rands);
Interest on the
aforesaid sum, at the prescribed rate of interest, from date of
judgment to date of payment;
Costs
of suit on the High Court scale as between party and party.
DATED
AT JOHANNESBURG THIS 31st DAY of MARCH, 2009
N.P. WILLIS
JUDGE OF THE
HIGH COURT
Counsel for the
Plaintiff: Advocate M.M. Hinana
Attorneys for the
Plaintiff: Dudula Inc.
For the Defendant:
S.T. Nkosi
Attorneys for
Defendant: State Attorney
Dates
of hearing: 23
rd
and 24
th
March, 2009
Date
of judgment: 31
st
March, 2009
1
The
word “
and
”
in the sentence in question is used both conjunctively and
disjunctively.
2
2003
(1) SA (SCA) at para [5]
3
1980 (2) SA 234
(W) at 237.
The reasoning of Coetzee J, as he then was, was approved and
developed slightly in
National
Employers’ General Insurance v Jagers
1984
(4) SA 432
(ECD) by Eksteen AJP at 440E-441A.
4
1984 (4) SA 432
(ECD) by
Eksteen AJP at 440E-441A
5
[2001] 1 All SA 399
(A) at
para [7] in which the passage by Ecksteen AJP in
National Employers’ General Insurance v Jagers
(
supra
)
at 440E-441A was unanimously approved by the Supreme Court of Appeal
6
1974 (4) SA 420
(W) at 425
7
1931 AD 187
at 199
8
1982
(2) SA 603
(A) at 614H
9
1963 (4) SA
147
(A) at 159C
10
See,
for example:
South
British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd
1976 (1) SA 708
(A) at 713 E-G;
Smit
v Arthur
1976 (3) SA 378
(A) at 386B-D;
Cooper
and Another NNO v Merchant Trade Finance Ltd
2000 (3) SA 1009
(SCA) at 1028B-C;
Hülse-Reutter
and Others v Gödde
2001 (4) SA 1336
(SCA) at para [14];
Jordaan
v Bloemfontein Transitional Local Authority
2004
(3) SA 371
(SCA) at para [379];
De
Maayer v Serebro; Serebro v Road Accident Fund
2005
(5) SA 588
(SCA) at para [18]
11
See, for example: The
Oxford
Dictionary
, and
Webster’s
International
Dictionary
12
See,
AA Onderlinge Assuransie Assosiasie v De Beer
1982
(2) SA 603
(A) at 614H
13
This
refers, obviously to Schedule 1 of the Act.
14
1986
(2) SA 805
(A) at 818G-H. See, also:
Minister
of Law and Order v Hurley and Another
1986
(3) SA 568
(A) at 577I-589G and
Minister
of Law and Order and Others v Pavlicevic
1989
(3) SA 679
(A) at 684G-685A
which
related to not dissimilar provisions in section 29 (1) of the
Internal Security Act, No.74 of 1982.
15
Referred
to in the judgment as “jurisdictional facts” – see
p818G
16
Duncan v Minister of
Law and Order
(
supra
)
at 814D-E; See, also:
Minister
of Law and Order v Hurley and Another
(
supra
)
at 579F-G and
Minister
of Law and Order and Others v Pavlicevic
(s
upra
)
at 684G.
17
See
Minister
of Law and Order and Others v Pavlicevic
(s
upra
)
at 693E-F
18
1992
(3) SA 108
(C)
19
Minister
of Justice v Hofmeyr
[1993] ZASCA 40
;
1993
(3) SA 131
(A) at 157I
20
2003(5)
SA 126 (E);
[2001] 1 All SA 370
(E)
21
[2008] ZAGPHC 50
;
2008
(2) SACR 387
(W)
22
2006
(2) SACR 178(T)
23
2007
(2) SACR 137 (W)
24
[2008] ZAGPHC 50
;
2008
(2) SACR 387
(W)
25
[2007] ZAGPHC 276
;
2009
(1) SACR 32
(W)
26
Section 12
27
Lansdown & Campbell
South
African Criminal Law and Procedure
(vol v);
Criminal
Procedure and Evidence
Juta’s (1982) 324. See, also:
S
V Moeti
1991 (1)
SACR 362
(B) at 463
h
.
28
It
is common cause that as “malicious injury to property”
does not fall in Schedule 6 of the Act, this subsection
does not
apply
29
2006
(5) SA 495
(W) at para [9]
30
1954 (3) SA (N)
31
1972 (2) SA 327
(A)
32
1973 (4) SA 259
(C)
33
1977 (2) SA 900
(A)
34
1979 (4) SA 759
(A)
35
1982 (4) SA 16
(C)
36
1988 (4) SA 875
(C
37
1989 (2) SA 813
(V)
38
1990 (2) SA 855
(E)
39
1991 (1) SA 702
(E)
40
1993 (3) SA 432
(E)
41
1993 (3) SA 577
(A)
42
1995 (2) SA 518
(C)
43
1999 (3) SA 854
(E)
44
(unreported judgment in this division of Marais J, Case No. 14968/97
delivered 8 Mar 2000)
45
[2000] 2 All SA 318
(SE)
46
2000 (4) 68 (W)
47
2003 (1) 567 (CkHC)
48
Referred to in para [14] above
49
Also
referred to in para [14] above
50
at 847 B-C and see paras [10] to [13] of the
Seymour
judgment
51
Para [10] of the
Seymour
judgment
52
Minister of Safety
and Security v Seymour
2006 (6) SA 320
(SCA) at paras [12] to[22]
53
Para
[22] of the
Minister
of Safety and Security v Seymour
case
54
[1972] UKHL 3
;
[1972]
AC 1027
;
[1972] All ER 801
(HL)
55
2003
(5) SA 339
(SCA) at para [3]
56
2005
(5) SA 130
(C)
57
Referred to in para [10] above
58
Referred to in para [10] above
59
Referred to in para [10] above
60
Referred
to in para [10] above
61
See
151D of that judgment
62
See
p189 of that judgment
63
See
399
h
to 400
b
of that judgment
64
See
p41
i
-
j
of that judgment