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[1987] ZASCA 13
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S v Hooisain (12/85) [1987] ZASCA 13 (24 March 1987)
EBRAHIM HOOISAIN
APPELLANT
and
THE STATE
RESPONDENT
CASE NO. 12/85
/ccc
IN THE SUPREME COURT OF SOUTH AFRICA
'
(APPELLANT DIVISION)
IN THE MATTER BETWEEN
EBRAHIM HOOISAIN
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: RABIE ACJ, HEFER
JA et KUMLEBEN AJA
HEARD
: 6 MARCH 1987
DELIVERED
: 24 MARCH 1987
JUDGMENT KUMLEBEN, AJA
:
The/
2.
The appellant was one of three accused charged in the regional
division of the Magistrate's Court at Wynberg with contravening sec
2(a) of Act
41 of 1971. The charge proffered was that during the period from July 1981 to
May 1982 he unlawfully dealt in 94 055
Mandrax tablets containing methaqualone.
The alterna-tive count alleged that during the same period he illegally
possessed them.
He was convicted on the main charge and sentenced to a period of
twelve years' imprison-ment. (The other two accused were acquitted).
His appeal
to the Cape Provincial Division failed, as did his applica-tion for leave to
appeal to this court. Such leave was however
granted on petition to the Chief
Justice.
Appellant's/
3.
Appellant's conviction was based largely on a statement he
made to a magistrate on 14 May 1982. Its admissibility was contested on
the
ground that he had been unduly influenced to make it. This led to a
"trial-within-a-trial". At its conclusion the magistrate,
re-lying on the
presumption in
sec 217(1)(b)(ii)
of the
Criminal Procedure Act, 51 of 1977
,
ruled that appellant had failed to prove that he had been unduly influenced to
make the statement. It was accordingly received in
evidence as exhibit C.
Its
substance was that during July 1981 appellant was approached by one Solomons who
asked him whether a closed trailer could be stored
for him in a yard at
appellant's home. He agreed without knowing
what/
4. what it contained. At some later stage he became suspicious and
on enquiring was told by Solomons that in it were two suitcases
containing
Mandrax tablets. This made him anxious to see it removed from his premises but
on being paid R30 000 by Solomons he agreed
to its remaining there. Having made
this arrangement, Solomons left for India. In December 1981 appellant visited
him there. When
they met he asked appellant to remove the trailer from his yard
and place it in a locked garage where it would be secure and its
contents
protected from the weather. A further amount of R4 000 was paid to him. On his
return to this country he carried out this
instruction. The trailer was taken
from his home at 98 Halt Road, Elsies River and stored in a garage on the
premises of one of his
dry/
5. dry cleaning businesses, "Quick Dry Cleaners" situated
at
Victoria Road, Grassy Park. There it remained until it was discovered by
the police in the early morning of 14 May 1982.
Certain other facts, which bear upon the issues to be decided in this appeal,
were indisputably proved by the evidence of two State
witnesses: Mr Sheik Adam
Hoosain and Det.Sgt Slabbert. The former is a nephew of appellant and lived with
him at his home. He was
also the manager of "Quick Dry Cleaners". He was not
present at these premises when the trailer was brought and placed in the garage
by appellant or by someone on his instructions. In due course he saw it in the
garage and was told by appellant that he was to look
after it and see that
no
one/
6. one tampered with it as it belonged to someone else. Appellant
did not disclose its contents to him. He merely said that it contained
a fridge
and other "valuables". It remained there for a week or two before it was
dis-covered by the police. When they arrived at
the premises that morning at
about 6:30 am they were met by an employee, Mrs Ethel Davids, who let them in.
At his request she gave
Det.Sgt Slabbert the key of the gate giving access to
the fenced enclosure within which the garage is sit-uated. On entering the
garage he found the trailer, the lid of which was secured with two padlocks.
These were forced open to reveal the two suitcases containing
94 packets of
Mandrax tablets. The other two accused
were/
7. were at the premises that morning and were arrested. No 2
accused was an employee, who slept in a room in the back yard close to
the
garage. Sheik Adam Hoosain had instructed him to keep an eye on the trailer at
night and at other times when he (Hoosain) was
not there. No 3 accused was a
friend of No 2 accused and happened to be spending that night in the room with
him. That morning soon
after the discovery of the Mandrax appellant and members
of his family were also arrested.
The following further facts, which were
ad-mitted or proved, are relevant to the issues to be considered. The Mandrax
tablets in the
packets were counted and the total number was 94 055. After
Solomons
left/
8. left for India - as far as the evidence reveals - he at no
stage returned to this country or exercised any con-trol over the trailer.
If
the key or keys of the pad-locks were found by the police - the evidence is not
clear in this regard - they were not found in
appellant's possession.
The appellant and the two accused closed their respective cases without
tendering any evidence. The questions raised on appeal are
thus to be decided on
the State case. They are:
(i) Whether, in deciding on the admissibility of the statement, the
magistrate was correct in concluding that the onus was upon appellant
to prove
that he was unduly influenced to
make/
9. make it. (ii) Whether the magistrate was correct in con-
cluding that
such onus of proof was not dis-charged. (iii) Whether the facts proved that the
appellant
was "found in possession" of the Mandrax táb-lets within the meaning
of that phrase as used in
sec 10(1)(c)
of the Abuse of Dependence -producing
Substances and Rehabilitation Centres Act, 41 of 1971 ("the Act"). (iv) Whether,
if the presumption
in the said sub-
section of the Act is applicable, it was rebutted (notwithstanding the fact
that the appellant failed to give evidence.)
(v) And/
10.
(v) And lastly whether the sentence imposed was
excessive and ought to be reduced.
The first ground, which was raised for the
first time on appeal to the court a
quo
, was thus for-
mulated in
the heads of argument:
"The Magistrate erred in ruling that the onus was on the Accused to prove
that the statement which the Accused had made to MAGISTRATE
PECKHAM had not been
made freely and voluntary while in his sound and sober senses and without having
been unduly influenced thereto,
more particu-larly, in that it does not appear
from the document in which the statement is contained that it was made freely
and
voluntarily by the Accused while in his sound and sober senses and without
having been unduly influenced thereto."
The point taken has reference to the provisions of sec
217(1)(b)(ii) of the
Criminal Procedure Act 51 of 1977
which/
11.
which paraphased states that where a confession is made
to
a magistrate it shall on its mere production be presumed,
unless the contrary is proved,
"to have been freely and voluntarily made by such person in his sound and
sober senses and without having been unduly in-fluenced
thereto, if it appears
from the document in which the confession is con-tained that the confession was
made free-ly and voluntarily
by such person in his sound and sober senses and
without having been unduly influenced thereto."
A similar provision relating to an
admission
is to be
found in
sec 219(A)(l)(b)
of that Act. Mr
Seligson
,
who appeared
with Mr
Veldhuizen
for the appellant, a-
greed that for the purpose of deciding this point it is immaterial whether
the statement is regarded as a
confession/
12.
confession or an admission. I shall, as the magis-trate did
at the trial, assume that it is a con-fession.
The circumstances in which the
provisions of sec 217(1)(b)(ii) can be invoked to place the onus upon an accused
were considered by
this court in
S v Mphahlele and Another
1982(4) S A
505 (AD) at 514H - 517B. It was pointed out that the answers in reply to the
stereotype and formal questions put before
the actual statement is made will not
suffice for the presumption to become operative if it appears that the accused
was not permitted
to make a further statement, which may have had the effect of
contradicting or materially qualifying
his/
13.
his answers. Thus, with reference to the facts of
that
case,
Miller JA
said at p 516:
"What 'appears' from exh.CC is that, al-though the deponent's answers to
specific questions indicate that he was about to make a confession
freely and
voluntarily, his attempt to say something more was frustrated, with the result
that the docu-ment was not complete. And
there is nothing to show that the
'something more' that he wished and tried to say would not, had he been given a
full opportunity
of saying it, have vitiated or materially qualified what he had
until then said."
Relying on this
dictum
it was submitted
that similarly in this case the appellant was curtailed
in explaining fully how he came to be before a magis-
trate to make the statement and that this is apparent
from what is recorded on the exhibit C. The relevant
portion/
14.
portion reads as follows:
"Do you understand the warning which has now been given you? Yes sir.
Do you still wish to make a statement? Yes sir.
Are you aware of the fact that you are in the presence of a magistrate, that
you have nothing to fear and that you may speak frankly?
Yes sir.
Have you been' assaulted, threatened or influenced by any person with a view
to making this statement? No sir, not at all. Have you
been encouraged by any
person to make a statement? No sir.
Have any promises been made to you by any per-son in order to influence you
to make a state-ment? No sir.
Have you been influenced in any other way by any person to make a statement?
No sir. Do you expect any benefits should you make a
statement? Not really.
Q. What do you mean by 'not really'? A. I mean what benefit can I derive
by
making/
15.
making a statement. If I make a statement, it is the truth I wish to tell. I
have nothing to hide. Q. Do you therefore expect any
benefit? A. No sir.
(If
the answer is in the affirmative the de-ponent must be questioned and his
statement noted. If he alleges that he was assaulted
he must be asked whether he
has any visible injuries, wounds, abrasions etc. which were received as a result
of the assault, and
the nature thereof must be noted). Q. Do you have any
injuries? A. No sir. (No visible injuries) (Investigate and describe carefully
the cir-cumstances which led to the appearance of the deponent before
you)
When were you arrested? This morning 14.5.1982. This morning at about 8
am the police officers they came to my place and closed up
my busi-ness and they
asked us, me and my wife and my brother's wife and my nephews and their wives
and they asked us to accompany
them to the police station with our passports and
books of life.
Q.
I don't want to know how you came to be arrested, but how you came to
be brought to a magistrate
?
A. I/
16.
A. I was sitting in Cpt. Smuts office after being called
there. I was told if I wanted to make a statement it is en-tirely up to me.
If I
don't want to, I don't have to. I was not forced to make one. I said no, I want
to make a confession and Capt. Smuts asked another
officer to bring me down to
the court.
A. How did you know you can make a con-fession to a magistrate?
A. The captain told me if I want to make a
confession, he would have,to have me brought to a magistrate. I myself did
not know the formalities.
Q. Do you wish to make a confession to a magistrate?
A. Yes sir."
The question, which I have italicised, is said to be the offending one. It is
actually a remark followed by a question. The remark,
it is to be noted, does
not appear to have been an interruption. On the face of it appellant had said
all he wished to say on the
subject
of/
17. of his arrest. Be that as it may, the question which follows
makes it perfectly plain that the appellant was being invited to
explain, as
fully as he pleased, what led to his coming before the magistrate, which would
clearly include any action on the part
of the police impelling or influencing
him to do so. Moreover this question ought not to be considered in isolation. If
one has regard
to those which precede and follow it, they confirm that he was
given ample opportunity to fur-nish a full explanation and from his
answers it
appears that he did so comprehensively. Thus, in my view it does appear ex
facie
the document that the statement was voluntarily made and without
the appellant having been unduly influenced. The presumption in
sec
217(1)(b)(ii)/
18. 217(1)(b)(ii) accordingly applies. The
magistrate
was therefore correct in placing the onus on the appellant to
prove the contrary on a balance of pro-babilities.
It was counsel's
alternative submission that this onus was discharged. It was common cause that
on the morning in question various
members of appellant's family were also
apprehended and brought to the police station. There was no indication that this
was done
for an ulterior purpose. Appellant said in his evidence at the
"trial-within-a-trial" that Lt Smuts told him that unless he made
a statement
before a magistrate he and they would not be released. This weighed heavily with
him, particularly since some of them
managed branches of
his/
19. his busihess which would remain closed were they to remain in
detention. His concern in this regard is understandable and it may
have been the
reason, or a contributing one, for his deciding to make the statement. The
crucial question however is whether Mr Smuts,
who was at the time a lieutenant
in the S A Police force, held out such an inducement. Appellant also alleged
that Smuts said that
if he refused to make a statement he would be detained
indefinitely "under article 13"-a reference to the procedure permitted by
sec 13
of the Act. Smuts gave evidence and denied having in any way rhreatened or
persuaded the appellant to make the statement.
He said that when the two of them
were
alone/
20.
alone in an office at the police station he put it to the
appellant that he was no doubt aware of the reason for his arrest. Appellant
confirmed this and was quite prepared to make a statement to him ex-plaining how
the Mandrax tablets came to be at his pre-mises
at Grassy Park. He was also
prepared of his own free will to repeat his statement before a magistrate.
In
his judgment the magistrate gave de-tailed reasons for concluding that the
appellant had not discharged the onus of proving any
threat or inducement. They
were in the main that Smuts was a truthful witness and that the probabilities
did not favour appellant's
version of what took place. Before us Mr
Seligson
challenged the correctness of his reasoning in the following
respects/
21. respects.
Appellant said in his statement (Exhibit
C)" that Smuts had asked him whether he knew a certain
Zambian air hostess, the implication being that she had
been involved in
bringing the Mandrax tablets into this
country and perhaps to him. Counsel
argued that this
allegation (which incidentally was not put to Smuts
in
cross-examination for him to deny or explain) indicated
that appellant was interrogated before he made his state-
ment to Smuts
and refutes the evidence of the latter that
"virtually" nothing was said by them before appellant ex-
pressed his willingness to make a full disclosure.
Assuming that Smuts did raise this question with him,
this is not inconsistent with his evidence and there is
no reason why Smuts should not at some stage have put
that/
22.
that question to him without it in any way amounting to
interrogation.
It was also submitted that at the time Smuts interviewed
him there was little or no evidence implicating the appellant and it is
therefore
likelý that Smuts would have exacted a confession or admission
from appellant. Smuts was not cross-examined in this regard.
In the light of
appellant's statement no other evidence was necessary at the trial to implicate
him. There is no evidence indicating
whether at the time of the inter-view with
Smuts other evidence was available or was likely to be obtained. In the
circumstances
this con-tention is based on conjecture.
It was unlikely, so it was submitted, that
appellant/
23.
appellant would make the statement if Smuts had not induced
him to do so. But, as I have said, there were pressing reasons why he
should
make a statement which would have the effect of exonerating other members of his
family and releasing them from custody. As
to the alleged threat of detention in
terms of sec 13, this is emphatically denied by Smuts and there are no grounds
for doubting
the truthfulness of his denial.
Finally it was argued that the
magistrate, when assessihg the credibility of appellant on this issue, erred in
criticising him for
not having told the magis-trate during the questioning that
he was not acting voluntarily and that inducements had been held out
to him. The
magistrate commented adversely on the fact
that/
24.
that appellant had raised these issues for the first time at
the trial. There is substance in the criti-cism of this particular reason
given
by the magistrate. Whenever undue influence in
truth
prompts the making
of a statement, it is to be expected that false answers to the relevant
prefatory questions will be given. (Cf
S v Mbonane
1979(3) S A 182 (TPD)
187H - 188B). For this reason
the mere fact
that such answers contradict
an accused's evidence in court in a "trial-within-a-trial" should not
necesssarily be held against him.
However, this is not to say that the answers
themselves are not relevant and ought not to be closely examined in deciding
whether
they are true or false. Those given by the appellant have been quoted
earlier in this judgment. Had they been
intended/
25.
intended to be deceptive rather than truthful, it is,
to
my mind, unlikely that they would have been as explicit
and apparently
spontaneous.
In the result, despite the fact that the reasoning of the
magistrate is in one respect open to criticism, I am satisfied that he had
good
grounds for concluding that the appellant had failed to discharge the burden of
proof placed upon him by the provisions of sec
217(1)(b)(ii) of the Act and that
his statement was rightly ruled admissible.
Turning to the third question - whether the appellant was "found in
possession" - it has recently been re-affirmed in this Court that:
"In/
26.
"In general the concept of 'possession' ('besit'), when found
in a penal sta-tute, comprises two elements, a physical element (
corpus
)
and a mental element (
animus
).
Corpus
consists either in direct
physical control over the article in question or mediate control through
another. The element of
animus
may be broadly described as the intention
to have
corpus
, ie to control, but the intrinsic quality of such
animus
may vary, depending upon the type of possession intended by the
statute.
S v Adams
1986(4) S A 882 (AD) at 890. (See too
R v Binns and
Another
1961(2) S A 104 (TPD) 107.) It was common cause that appellant in
this sense was in possession of the trailer and its contents when
it was
discovered by the police. And it is to be noted that by virtue of the definition
in sec 1 of the Act a person may
"possess"/
27.
"possess" a prohibitêd drug as possessor, holder, storer, custodian,
controller or supervisor and that the same drug can, at
the same time, be
possessed by more than one person in a different or in the same capacity. (See
S v Mkize
1971(1) S A 517 (AD) 523). It is against this background that
one must consider whether the appellant was "found in possession" within
the
meaning of those words as they appear in sec 10(1)(c) of the Act. If so, in
terms of the sub section, appellant is presumed to
have"dealt in" the drugs in
question.
The predecessor of this sub-section was sec 90
bis
(a) of Act 13 of
1928, as amended, in
which/
28. which the words "found in possession" appeared in the same
context. Their meaning was discussed in
The State v Wilson
1962(2) S A
619 (AD). The court pointed out that it is the relationship between the
prohibited substance and the person charged,
rather than the physical presence
of an accused at the time of finding, which is significant; and that the phrase
"found in possession",
as opposed to "possession", was used to stress that the
possession must be proved at that point of time.
Ogilvie Thompson
JA at
page 624 went on to say that:
"In my judgment, it is neither necessary nor desirable to attempt the
formulation
of/
29.
of any universal rule as to when a person charged may rightly be said to be
'found in possession' of dagga with-in the meaning of
sec. 90
bis
(a).
(Cf.
Rex v Moosa and Others
,
supra
at p. 530 A). It is sufficent
to state two propositions. First, that the possession as at the time when the
dagga was found, of 'the
person charged' must always be established. That will
ordinarily be an issue of fact depen-ding upon the circumstances of the
par-ticular
case, although in certain in-stances it may be a question of mixed
fact and law. Secondly, it is not an essential element of being
'found in
possession', as that expression is used in sec. 90
bis
(a) of the Act,
that 'the person charged' should have been physically present at the time the
dagga is found."
In as much as possession on the part of an accused
at/
30.
at the time the drug is found is stated in the above-quoted passage to be an
essential requirement, but not necessarily the sole or
decisive one, the
possi-bility is recognised that the degree of control (
corpus)
, or the
nature of the intention to possess (
animus
) may in a particular case be
such that the inference that a possessor was "found in possession" may not be
justified. It is thus
a matter of fact and degree.
I have no doubt that in this case the in-ference that appellant was "found in
possession" is the correct one. Accepting that the Mandrax
in
the/
31.
the trailer was initially in the possession of Solomons,
there is no suggestion that he exercised any control over the trailer or
its
contents from the time he left for India or at the latest after he gave
appellant the instruction when they met there. It was
suggested in argument that
it was under the immediate control of Mrs Davids because she had the key to the
front door of the building
and of the yard at the back. But there is no evidence
that the trailer was entrusted to her care or as a matter of fact that she
even
knew of its existence. It was also said that because accused No 2 was instructed
to "guard" the trailer it was under his immediate
control. But he, and for that
matter
Shaik/
32.
Shaik Hoosain, were no more than caretakers of the trailer.
Neither of them possessed the trailer or its contents in any realistic
sense of
the word,. It was appellant who decided to remove the trailer from his home to
his business premises. It was he, not they,
who could decide for how long it
should remain there and what was to be done with it. He, and no one else,
exercised effective control
over it.
In the result, whether or not it may be said that others at some stage
"possessed" the Mandrax tablets, I consider that the magistrate
was correct in
holding that the appellant was "found in possession" at the relevant time and
that the presumption in sec 10 (1) (c)
of the Act applied.
Counsel/
33.
Counsel next submitted that the presumption has been rebutted
because, though appellant possessed the Mandrax for the purpose of sale,
according to his statement the tablets were not to be sold by him but by
Solomons at some future time. The fact that the Mandrax
was not to be sold by
him
, so it was argued, rebutted the presumption.
Assuming that appellant was not to be the actual seller, such a restrictive
interpretation of possession is unwarranted. By definition
in sec 1 of the Act
"deal in" includes"performing any act in con-nection with .... the sale ....
thereof." "Sell" in turn is defined
inter alia
as "possessing for sale"
and "sale" has a corresponding meaning. Appellant is there-fore presumed to have
dealt in Mandrax tablets
in that he possessed them for sale, whether or not he
personally
intended/
34.
intended selling them. (Cf
S v Batshise
1982(1) S A
966
(AD) at 970H and 971G and
S v Solomon
1986(3) S A 705 (AD)).
The
latter decision at 712 quoted with approval the follow-
ing passage from
S v Morgan
1979(2) S A 609 (OPD) at 614H:
"(d) aktiwiteite vervat in die uitgebreide betekenis van handeldryf soos
uitgebrei deur die insluiting van die definisie van verkoop,
behels almal
verskaffingsaktiwi-teite of aktiwiteite wat bereken is om hierdie aktiwiteite te
bevorder."
And
Solomon's
case concludes by stating at page 713A that the
question whether a period is a "dealer" must be answered
"aan die hand daarvan of die betrokke per-soon deel gehad het, hetsy as dader
of medepligtige, aan die verskaffing van die verbode
stof".
The inference is inescapable that appellant
possessed the Mandrax in the
knowledge that it was destined
for sale. Thus, far from rebutting the
presumption, the
facts/
35. facts rather indicate that there was really no need to
rely on it.
The magistrate carefully and comprehensively
considered all the relevant
factors relating to sentence.
The personal circumstances of the appellant,
notably the
fact that he was a first offender, were taken into account.
On the other
hand, the magistrate had regard to the serious-
ness of the offence. Though
this did not appear clearly
from the record, counsel confirmed the evidence that the
retail selling
price of one Mandrax tablet was at the time
Rl0. Thus. the value to the
retailer of the Mandrax in-
volved was almost Rl 000 000. The appellant was
prepared
to play a vital role in its sale and distribution by
keeping the
tablets on behalf of Solomons. For doing so
he received R34 000. These facts,
and the far-reaching
social/
36.
social evils resulting from the distribution of
this
harmful drug, led the magistrate to conclude, rightly
in my view,
that it was "a very serious offence".
In argument on sentence before us, the question
whether the magistrate had misdirected himself was raised
for the first time. Counsel submitted that when it came
to sentence the
magistrate did not accept the role played
by Solomons and sentenced appellant on the basis that he
possessed the Mandrax in his own right and that it was to
be sold by him, or on his behalf, for his own profit. For
this submission counsel relied on the following passage at
the conclusion of the remarks on sentence:
"It is so that there is no evidence to the effect that you seduced other
people in buying the tablets.
You did not acquire
them
/
37.
them to deal in it
. (
sic
) Of course, al-though there is no
evidence to that effect, there is also an explanation from your side through the
statement which
you made, which of course could not be tested. It is no use to
make a statement and to put the thing on record and then hand it in
to the Court
and then want the Court to accept it blindly. That statement of yours, there was
no oppor-tunity to test the correctness
of it, and as far as this Court is
concerned and as far as the evidence from the police, the Court is satisfied
that you were found
in possession of these tablets and
you received an amount
of R30 000 to keep it
and that is as far as it goes.
It is very difficult to understand or to accept that a person would leave
such an amount of tablets to such a big value un-attended,
if the Court can put
it in this way, worthless for a period of approximately ten months to a year,
and that makes your story very
difficult to accept, that you just kept the pills
or the tablets for this Issie Solomons. I can hardly believe that he would have
left it there. It is money which he left with you; he lost a lot of money by
leaving/
38.
leaving it in your possession, and that is why the Court says it is very hard
and very difficult to blindly accept your statement
and to whát you have
said or told the Magis-trate in your statement." (My italics).
This passage considered in isolation lends some support to
this argument,
though it is to be noted that in it the
magistrate finds as a fact that the
appellant did not
acquire the tablets to sell them but was the custodian
for
Solomons (as appears from those portions which I have italisised).
Earlier in his judgment on the merits the magistrate found
as a fact that appellant "assisted Mr Issie Solomons in
his evil practice" and inferentially that appellant was not
"the actual dealer". Thus, although the magistrate drew
attention to inherent improbabilities in the appellant's
statement and was sceptical of its truthfulness in certain
respects/
39.
respects, I do not consider that it can be said that he
misdirected himself as alleged. In the light of this conclusion it is
unnecessary
to decide: firstly, whether it was open to appellant to argue this
point having regard to the ground of appeal on sentence (which
simply alleged
that it was excessive and unduly severe); and secondly, whether the magistrate
was not entitled to reject those portions
of an extra curial statement which
were improbable and not confirmed on oath by the appellant during the trial or
in mitigation of
sentence. (Cf
Rex v Valachia and Another
1945 AD 826
at
837.)
In the absence of any misdirection I am unable to conclude that the sentence,
though severe, is disturb-ingly inappropriate and that
the magistrate
consequently
failed/
40.
failed to exercise a proper discretion in deciding on what
he considered to be a proper sentence.
The appeal against the conviction and
sentence is dismissed.
M.E. KUMLEBEN AJA
RABIE, ACJ )
)
) CONCUR
) HEFER, JA )