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[2024] ZALMPPHC 75
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Shilabye v Minister of Police (9230/2022) [2024] ZALMPPHC 75 (24 July 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 9230/2022
REPORTABLE:
YES
/NO
OF
INTEREST TO THE JUDGES:
YES
/NO
REVISED
DATE: 24-07-2024
SIGNATURE:
In
the matter between:
THATO
CLEARENCE SHILABYE
PLAINTIFF
And
MINISTER
OF POLICE
DEFENDANT
JUDGEMENT
MASHAMBA
AJ
Introduction
[1]
In
this matter one Thato Clearance Shilabye
(“the
plaintiff”)
,
an adult male, instituted an action in this Court against The
Minister of Police
(“the
first defendant”)
;
and the National Prosecution Authority
(“the
second defendant”)
.
As set out in his Combined Summons the Plaintiff, at the commencement
of his action, claimed delictual damages from both Defendants
based
on the same cause of action, namely, unlawful arrest and detention,
together with malicious prosecution.
[2]
When the trial came before this court on the 23
rd
of May
2023 the defendants abandoned their special plea against the
plaintiff. The plaintiff withdrew the entire action of malicious
prosecution against the second defendant and tendered to pay the
wasted cost.
[3]
In light thereof the only issues remain for the adjudication of this
court were whether or not the arrest of the Plaintiff by
a member of
the South African Police Services and the subsequent detention
thereafter was unlawful and, if so, the determination
of the
plaintiff’s damages as a result thereof. Only one defendant
remained potentially liable for those damages, namely
the first
defendant as cited in the Plaintiff’s action. For simplicity
the first Defendant shall be referred to as “
the defendant”
for the remainder of this judgment.
The
common facts
[4]
It was common cause or not disputed in this matter that: -
4.1
the plaintiff was
arrested on the 20
th
of September 2020,
after he handed himself to the police Sergeant Teffo (hereinafter
referred as “Sgt Teffo”), a member
of the South African
Police Services stationed at Seshego Police Station;
4.2
when Sgt Teffo
effected the said arrest, he did so without a warrant;
4.3
at all material
times Sgt Teffo was employed as a member of the South African Police
Services and acted within the course and scope
of his employment with
the Defendant;
4.4
Sgt Teffo is a
peace officer as defined in the
Criminal Procedure Act 51 of 1977
(“the
Act”);
4.5
the plaintiff was
charged with rape and robbery which is a Schedule 1 Offence in terms
of the Act;
4.6
pursuant to his
arrest on the 20
th
of September 2020
the plaintiff was detained in custody until his release on the 09
th
of March 2022 after
being discharged;
4.7
the defendant bore
the duty to begin and the onus of proof to show, on a balance of
probabilities, that the arrest of the plaintiff
was lawful in terms
of
section 40(1)(b)
of the Act.
The
Defendant’s case
[5]
The defendant elected to rely on the oral evidence of a single
witness Sgt Teffo, the arresting officer. This witness is stationed
at Seshego Police Station and has been a policeman for the past 16
years. Sgt Teffo has been a Sergeant for 5 years. As at 20 September
2020 he was stationed at the same Police Station carrying out an
investigation into various crimes under the Family Violence and
Sexual Offence Unit.
[6]
Sgt Teffo testified that he was assigned to investigate the matter
with Cas no: 147/08/2020. On 11 August 2020, at 6:30 morning,
L[…]
L[…] (hereinafter referred as “the complainant’’)
aged 24 was raped by an unknown suspect.
Sgt Teffo confirms the
evidence as appears in his statement
[1]
.
Sgt Teffo said that on the 20
th
September
2020 he went to Moletji Mabokelele to do investigations. Sgt Teffo
testified that the complainant informed him that she
now knows the
names of the suspect who raped her as Thato Shilabye (the plaintiff)
as she saw him inside the motor vehicle (BMW).
The complainant
further indicated that she identified the plaintiff and that one of
her friends who was with her when she saw the
plaintiff knows where
the plaintiff resides and she also established his names. The
defendant referred to complainant’s friend
as Lucrecia Ledwaba
who also gave statement to Sgt Teffo
[2]
.
[7]
Sgt Teffo further testified that together with the complainant, they
went to the plaintiff’s home address. The plaintiff
was not
found at his residential place but his mother was found, she informed
Sgt Teffo that the plaintiff left home in the early
morning. She
indicated that she did not know the whereabouts of the plaintiff. Sgt
Teffo began to use the plaintiff’s cell
number and names to
search for his profile. He found that the plaintiff was previously
convicted of the similar offence of rape.
Sgt Teffo indicated that
the plaintiff profile made him to reasonable suspect that there is a
likelihood that the plaintiff committed
an offence of rape and
robbery.
[8]
The plaintiff called and informed Mr Teffo that he got his number
from his mother who said the police were looking for him.
The
plaintiff further informed Sgt Teffo that he was heading to Seshego
Police Station. The plaintiff arrived at the Police Station
with
together with his friend. The plaintiff with his friend, met Sgt
Teffo at Seshego Police Station. Sgt Teffo informed the plaintiff
that he was under arrest as a suspect under Cas 147/08/2020. Sgt
Teffo informed the plaintiff of his constitutional rights and
thereafter the plaintiff was detained in the police cells.
[9]
The plaintiff appeared at Seshego Magistrate Court on 21 September
2020, the case was postponed to 29 September 2020 for bail
application. On 29 September 2020 the case was further postponed to
06 October 2020 for bail application. The plaintiff applied
for his
bail on 06 October 2020 and his bail was denied by the learned
magistrate.
[10]
In cross examination the plaintiff put to Sgt Teffo that he supposed
to have applied for a warrant before effecting the arrest.
Sgt Teffo
replied by indicating that based on the information in his
possession, he had a reasonable suspicion that the plaintiff
committed the crime of rape. Sgt Teffo did not interview the
complainant’s friend but used her statement. He took note that
rape is a Schedule 1 offence and that there was a likelihood that if
the plaintiff might not be arrested, he may commit a similar
offence.
[11]
The plaintiff put to Sgt Teffo that the reason the prosecutor opposed
bail it was because of his evidence. Sgt Teffo denied
and indicated
that the Prosecutor and the court had other information such as the
plaintiff’s adduced evidence and his previous
conviction. Sgt
Teffo denied having slapped the plaintiff with an open hand and
denied breaking his eyes glasses.
Plaintiff’s
case
[12]
The plaintiff testified that on the 20
th
September 2020,
when he arrived at home, he was informed by his mother that Sgt Teffo
was looking for him. The plaintiff’s
mother gave him the letter
with contact details from Sgt Teffo. Later on, the same day the
plaintiff contacted Sgt Teffo and informed
him of his names and that
he got the numbers from his mother. The plaintiff wanted to know why
the police officers were looking
for him. Sgt Teffo confirmed that he
was looking for him and the plaintiff informed him that he was on his
way heading to Seshego
Police Station. The Plaintiff together with
one of his friends went to the Police Station. They found that Sgt
Teffo was not there,
they waited for approximately 30 minutes before
he arrived.
[13]
Sgt Teffo arrived and requested the plaintiff should come to the
charge office, which he did however, his friend was told to
excuse
himself. Sgt Teffo started to assault him by slapping him twice with
an open hand to his face. He had a swollen eye and
his eyes glasses
were broken. The plaintiff indicated that the assault did not sit
well with him because he thought he will be
treated with respect
since he has handed himself to the Police Station. The plaintiff
testified that Sgt Teffo was so nice over
the phone so he was shocked
when he was assaulted out of nothing. The plaintiff’s face was
swollen after the assault. The
plaintiff laid a complained of assault
but he was informed by Sgt Teffo’s colleagues that Sgt Teffo
instructed them not to
assist him. The plaintiff testified that on
11
th
August 2020 he was at his grandmother’s place
and he did not know the complainant. The plaintiff denied the
allegation of
rape and robbery against him.
[14]
The plaintiff was put in the cell which was overcrowded, the place
which supposed to hold 4 (four) inmates had an approximately
30
(thirty) inmates. The cell was dirty, toilets were not in good
working condition and the diet was not good. He stayed at Seshego
holding cells for a period of about 3 (three) months before being
transferred to Polokwane prison while waiting for trial. The
plaintiff indicated that after his transfer to Polokwane prison
things were better than Seshego holding cells, because in Polokwane
prison he could watch tv, good diet and hygiene was better. The
plaintiff indicated that he spent a year and three months in
Polokwane
prison.
[15]
On the 7
th
March 2022 his case was transferred to Seshego
Magistrate Court for trial. On 09 March 2022 the plaintiff was not
found guilty
and discharged.
[16]
In cross examination the defendant put to the plaintiff that during
the bail application he conceded that on 11 August 2020
in the
morning, he was exercising behind Moletjie clinic which is the place
close to the scene of crime and that he was not at
his grandmother’s
place as he alluded in examination in chief. The plaintiff did not
deny that he was exercising behind the
clinic on the 11
th
August 2020 in the morning but denied being at the mountain or bushes
where the rape took place.
The
Law
[17]
Subsection 40(1)(b) of the Act reads as follows: -
“
A
peace officer may, without warrant, arrest any person whom he
reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping from custody.”
[18] The jurisdictional facts for a
subsection 40(1)(b) defence are that: -
(a)
the arrestor must
be a peace officer;
(b)
the arrestor must
entertain a suspicion;
(c)
the suspicion must
be that the suspect committed an offence referred to in
Schedule 1; and
(d)
the suspicion must
rest on reasonable grounds
[3]
.
[19]
It is fairly trite that these grounds are interpreted objectively and
must be of such a nature that a reasonable person would
have had a
suspicion.
[4]
[20]
The arrestor’s grounds must be reasonable from an objective
point of view. When a peace officer has an initial suspicion,
steps
have to be taken to have it confirmed in order to make it a
reasonable suspicion before the peace officer arrests. Authority
for
this proposition is to be found in the matter of
Nkambule
v Minister of Law and Order.
[5]
[21]
In the matter of
Olivier
v Minister of Safety and Security and Another,
[6]
the court held
that:
“
When
deciding if an arrestor’s decision to arrest was reasonable,
each case must be decided on its own facts.”
[22]
Further, the court stated,
[7]
the following,
namely: -
“
This
entails that the adjudicator of facts should look at the prevailing
circumstances at the time when the arrest was made and
ask himself
the question, was the arrest of the plaintiff in the circumstances of
the case, having regard to flight risk, permanence
of employer, and
then residence, co-operation on the part of the plaintiff, his
standing in the community or amongst his peers,
the strength or the
weakness of the case and such other factors which the court may find
relevant, unavoidable, justified or the
only reasonable means to
obtain the objectives of the police investigation. The interests of
justice may also be a factor. Once
the court has considered these and
such other factors, which in the court’s view may have a
bearing on the question, there
should be no reason why the court
should not exercise its discretion in favour of the liberty of the
individual. Arrest should
after all be the last resort.”
[23]
The
discretion to arrest must be properly exercised and authority for
this proposition is once again found in the matter of
Duncan
v Minister of Law and Order
[8]
(supra)
.
The test for the legality of the exercise of discretion to arrest is
objective. The exercise of public power by the executive
and other
functionaries should not be arbitrary. Decisions must be rationally
related for the purpose for which the power was given,
otherwise they
are, in effect, arbitrary and inconsistent with this requirement. The
question of whether a decision is rationally
related to the purpose
for which the power was given, calls for an objective enquiry.
[9]
[24]
In objectively determining when an arrestor has acted arbitrarily the
court should consider whether or not he (1) applied his
mind to the
matter or exercised his discretion at all; and/or (2) disregarded the
express provisions of the statute. The authority
for this has long
been held.
[10]
[25]
The onus rests upon the arrestor to prove that the arrest was
objectively lawful.
[11]
[26]
If the arrest is unlawful, it follows that the subsequent detention
must also be unlawful.
[12]
[27]
The recent decision of the Supreme Court of Appeal in the matter of
Minister
of Police and Another v Erasmus
[13]
is illustrative of
the more recent developments in our law pertaining to unlawful arrest
and detention. the court held:-
“
When
the police wrongfully detain a person, they may also be liable for
the post-hearing detention of that person. The cases show
that such
liability will lie where there is proof on a balance of probability
that, (a) the culpable and unlawful conduct of the
police, and (b)
was the factual and legal cause of the post-hearing detention. In
Woji v Minister of Police
[2014] ZASCA 108
;
2015 (1) SACR 409
(SCA),
the culpable conduct of the investigating officer consisting of
giving false evidence during the bail application caused
the refusal
of bail and resultant deprivation of liberty. Similarly, in Minister
of Safety and Security v Tyokwana
[2014] ZASCA 130
;
2015 (1) SACR 597
(SCA), liability of the police for post-hearing detention was based
on the fact that the police culpably failed to inform the prosecutor
that the witness statements implicating the respondent had been
obtained under duress and were subsequently recanted and that
consequently there was no credible evidence linking the respondent to
the crime. In De Klerk v Minister of Police
[2019] ZACC 32
; 2020 (1)
SACR (CC) paras 58 and 76, the decisive consideration in both the
judgments that held in favour of the appellant was
that the
investigating officer knew that the appellant would appear in a
'reception court' where the matter would be remanded without
the
consideration of bail. Finally, in Mahlangu and Another v Minister of
Police
[2021] ZACC 10
;
2021 (2) SACR 595
(CC), the investigating
officer deliberately supressed the fact that a confession which
constituted the only evidence against the
appellants, had been
extracted by torture and thus caused their continued detention.”
[28]
Of course the
locus
classicus
in
respect of the principles applicable to the delictual liability of
the Minister of Police for detention is the Constitutional
Court
decision in the matter of
Mahlangu
and Another v Minister of Police
.
[14]
[29]
Firstly, the Court cited, with approval, the matter of
Relyant
Trading (Pty) LTD v Shongwe
[15]
where the Supreme
Court of Appeal held,
inter
alia
,
the following: -
“…
.to
succeed in an action based on wrongful arrest the plaintiff must show
that the defendant himself, or someone acting as his agent
or
employee deprived him of his liberty”.
[30]
Importantly, the Constitutional Court also cited with approval the
matters of
Woji
(supra)
and
Zealand
v Minister of Justice and Constitutional Development and Another
[16]
noting that
Woji
had followed
Zealand
in holding that the
Minister of Police was liable for post-appearance detention where the
wrongful and culpable conduct of the police
had materially influenced
the decision of the court to remand the person in question in
custody. Following thereon, the Constitutional
Court noted that this
reasoning “…
.
effectively means that it is immaterial whether the unlawful conduct
of the police is exerted directly or through the prosecutor”.
[17]
[31]
Finally, the Constitutional Court cited,
[18]
once again with
approval, the matter of
Tyokwana
(supra)
[19]
where it was held:
-
“
(T)he
duty of a policeman, who has arrested a person for the purpose of
having him or her prosecuted, is to give a fair and honest
statement
of the relevant facts to the prosecutor, leaving it to the latter to
decide whether to prosecute or not.”
Plaintiff’s
Submissions
[32]
The plaintiff submitted that on totality of the evidence tendered,
the defendant failed to discharge onus on balance of probabilities
that the arrest and detention of the plaintiff was lawful in terms of
subsection 40 (1)(b) and therefore, the arrest and detention
is
unlawful.
[33]
The plaintiff submitted that a reasonable police officer having
discovered that the identity of the plaintiff was unreliable,
would
have sanctioned an identity parade. The plaintiff submitted that a
reasonable police officer should have analysed and assessed
the
quality of the information at his disposal, critically and ascertain
the identity of the plaintiff. The plaintiff submitted
that it is
would only after an examination of this kind that the police officer
will allow himself to entertain a suspicion which
will justify an
arrest.
[34]
The plaintiff referred the court to case of
Mabona
and another v minister of law and Order and Others
[20]
.
“
The
Court reiterated that the rationality test is required the arresting
officer to enquire whether a reasonable man in the position
of the
arresting officer and possessed of the same information, would have
considered that there were good and sufficient grounds
for suspecting
that the Plaintiff was guilty of committing a crime’’.
[35]
The plaintiff submitted that he has a constitutional right not to be
deprived of his liberty, even when he has a previous conviction.
The
plaintiff submitted that he was arbitrarily deprived of his freedom
and the defendant has failed to prove that there was justification
for the interference.
[36]
The plaintiff submitted that if the court finds that the arrest was
unlawful the defendant should also be liable for the unlawful
detention as a result of the evidence adduced by Sgt Teffo during the
plaintiff’s bail application. The plaintiff contends
that if it
was not Sgt Teffo the bail application would have been granted.
Defendant’s
submissions
[37]
The defendant submitted that Sgt Teffo had on the basis of the
information in his possession, exercised his discretion to arrest
the
plaintiff without a warrant. The defendant further submitted that
further detention from the 21
st
September 2020 was on the
instance of the magistrate court.
[38]
The defendant submitted that the arrest was lawful, furthermore the
detention was also lawful as the plaintiff was made aware
of his
constitutional rights and brought to court within 48 hrs as required
in terms of the Act.
Court’s
Findings
[39]
In assessing whether the plaintiff arrest without a warrant was
justified. The Court noted the jurisdictional facts of section
40
(1)(b) of the Act. The arrestor Sgt Teffo is a peace officer, he
entertained a suspicion. The suspicion was that the plaintiff
committed rape which is an offence referred to in Schedule 1 of the
Act. The most essential requirement for this court is to assess
whether the suspicion rest on reasonable grounds. On the 11
th
August 2020 the complainant reported a case of rape and robbery which
took place next to Moletjie Clinic, Limpopo Province, at
around
06h30am. The complainant reported to Seshego Police Station that she
was raped and robbed for her phone by an unknown man,
while she was
going to school.
[40]
On 16 September 2020, the complainant called Sgt Teffo and informed
him that she saw the suspect inside the car (BMW) and her
friend
Lucrecia Ledwaba knew the plaintiff’s address. The complainant
established the names of the plaintiff as Thato Shilabye.
Sgt Teffo
used the information that was given to him to further investigate the
matter including examining the profile of the plaintiff.
[41]
During the examination in chief the plaintiff testified that in the
morning of 11 August 2020, he was at his grandmother’s
place.
In the cross examination the plaintiff conceded that during his bail
application his evidence was that in the morning of
11 August 2020,
he was exercising behind Moletjie Clinic, the place close to where
the offence of rape and robbery occurred. The
Court highlight this to
indicated that indeed there was evidence the plaintiff provided to
the magistrate during the bail application
which may have led to the
court not to grant bail.
[42]
The plaintiff suggests that Sgt Teffo should have not entertained
suspicion until the identification parade is done. The complainant
is
the one who called the police and gave the police the details of the
plaintiff and as a result, the police believed the evidence
from the
complainant. The police further made some investigation and found
that the names given to them are for the plaintiff who
have a
previous conviction of similar offences. The police reasonable
suspected that the plaintiff might have committed the offence
of rape
and robbery. In my view, any reasonable person in position of the
police who has received the identification of the plaintiff
from the
complainant, would have a reasonable suspicion that the identified
person, in this case the plaintiff, has possibly committed
the said
offence of rape and robbery.
[43]
This Court, on the balance of probabilities, finds that the defendant
had complied with subsection 40(9)(b) of the Act in arresting
the
plaintiff without a warrant of arrest. In my view, any reasonable
person in possession of the information which the police
had at the
time of the arrest would have reasonably believed that the plaintiff
committed the offence in Schedule 1 of the Act.
[44]
The plaintiff applied bail on 06 October 2020, and the defendant
opposed bail based on the information in their possession.
The
learned magistrate did not grant bail to the plaintiff after the
considerations of several factors, among others, the evidence
adduced
by the plaintiff, Sgt Teffo and consideration of the plaintiff’s
previous conviction. The plaintiff did not adduce
evidence of what
transpired in court during the plaintiff’s bail application
proceedings, therefore, this Court is not in
position to find any
wrong conduct against the defendant which may have led to the
plaintiff further detention. The plaintiff did
not adduce any
evidence to prove that Sgt Teffo gave any wrong information to the
court during his bail application. The Court
noted that Sgt Teffo
opposed plaintiff’s bail application but no evidence which
demonstrate that Sgt Teffo deliberately adduced
wrong evidence in
order to mislead the learned magistrate during the plaintiff bail
application.
[45]
The Court finds that on the balance of probabilities further
detention was not as a result of any misconduct, misleading
information
or wrong act committed by the defendant. The court on the
balance of probabilities finds that further detention was not done by
any act or omission by the defendant but it was a decision of the
learned magistrate after consideration of different factors.
[46]
The plaintiff alleged that Sgt Teffo assaulted him in his office on
the 20
th
September 2020. The plaintiff alleged that as a
result of the assault he had a swollen eye and his eyes glasses were
broken. The
plaintiff further alleged that he lodged a complaint to
Sgt Teffo’s colleagues but they denied to take him to hospital
as
they indicated that Sgt Teffo instructed them not to do so. The
plaintiff further alleged that he was not informed of his
constitutional
rights.
[47]
Sgt Teffo denied all the allegations of assault. The defendant also
produced the notice in terms of section 35 of the Constitution
of the
Republic of South Africa, Act 108 of 1996, with the plaintiff’s
signature as a proof that the plaintiff was informed
of his
constitutional rights
[21]
.
The plaintiff has onus to proof his claim of assault but he failed to
call other witnesses to corroborate his evidence and no
medical
report was provided. The swollen eye was not documented anywhere in
the docket. The plaintiff did not succeed to proof
that Sgt Teff
assaulted him in his office. The Court finds that on the balance of
probabilities the plaintiff was not assaulted
by Sgt Teffo and if
that was so, the plaintiff would have brought more evidence to proof
it.
[48]
In deciding the issue of costs, I will not deviate from the general
rule that the cost follow the event. The court has noted
that this
case was not complex so party and party cost will be reasonable to
compensate the successful party.
[49]
In the result, I make the following order;
[1] The claim for unlaw arrest and
detention is dismissed.
[2] The plaintiff is ordered to pay
cost on party and party scale.
E.
MASHAMBA
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION
POLOKWANE
APPEARANCES
FOR
THE PLAINTIFF:
ADV
K MOKWENA with him ADV MOHOTO
INSTRUCTED
BY:
NTIYISO
MATHEBULA ATTORNEYS
EMAIL:
admin@ntiyisoattorneys.co.za
FOR
THE DEFENDANT:
ADV
MAMAITWA
INSTRUCTED
BY:
THE
STATE ATTORNEYS
EMAIL:
Pmalatji@justice.gov.za
DATE
OF HEARING:
23
MAY 2024
DATE
OF JUDGEMENT:
24
JULY 2024
[1]
Bundle
C, page 26
[2]
Bundle
C, page 27
[3]
Minister
of Safety and Security v Sekhoto and Another 2011(5) SA 467 (SCA)
[4]
R
v Van Heerden
1958 (3) SA 150
(TPD). Duncan v Minister of Law and
Order
1986 (2) SA 805
(AD) at 814D.
[5]
1993
(1) SACR 434
(TPD); Heimstra (supra) at 5-8.
[6]
2009
(3) SA 434 (WLD).
[7]
at
445D to F.
[8]
at
818H-I.
[9]
Pharmaceutical
Manufacturers Association of SA and Another v Imray Ex Parte
President of the republic of South Africa and Others
2000 (2) SA 678
(CC) para 85-86, at page 708D-F.
[10]
Shidiack
v Union Government (Minister of the Interior) 1912 (AD) 642 at
651-652.
[11]
Minister
of Law and Order and Others v Hurley and Another
1986 (3) SA 568
(AD) at 589 E-F, Mabasa v Felix
1981 (3) SA 865
(AD) and Minister of
Law and Order v Matshoba
1990 (1) SA 280
(AD) at 284.
[12]
Minister
of Safety and Security v Tyokwana
2015 (1) SACR 597
(SCA) at 600G.
[13]
(366/2021)
[2022] ZASCA 57
(22 April 2022). Para 12
[14]
Supra
[2021] ZACC 10.
[15]
[2007]
1 All SA 375
(SCA) at paragraph 6; at paragraph [29] of Mahlangu
(supra).
[16]
2008
(2) SACR 1 (CC).
[17]
At
para [33].
[18]
At
para 41.
[19]
At
para 40.
[20]
1988(2)
SA 654 SE at 686 E-H
[21]
Bundle
C, page 9