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1985
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[1985] ZASCA 112
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S v Mazala (128/85) [1985] ZASCA 112 (27 September 1985)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
HAROLD ABEL MAZALA
appellant
and
THE STATE
respondent
Coram
: Kotzé et Hoexter JJA, et Galgut AJA.
Date cf
hearing
: 19 September 1985
Date of judgment
: 27 September 1985.
J
U D G M E N T
GALGUT
, AJA:
The appellant, to whom I shall refer as the accused,
was found guilty in the Regional Court, Johannesburg, of contravening sec.
2(1)(c)
of the Terrorism Act No 83 of 1967 ("the Act"). The Magistrate found
that the State
/ had
2
had proved that he had been in possession of an explosive,
a hand-grenade, during the period alleged in the charge sheet,
viz May 1981 to 15 July 1981. The sub-section casts an
onus on an accused found in possession of an explosive
to prove beyond a reasonable doubt that he did not intend
using the hand-grenade to commit any act likely to have any
of the results referred to in sub-sec. (2) of sec. 2 of the
Act.
There is no need to detail the results set out in sub-sec. (2). It is
sufficient to say the long list includes the causing of serious
bodily injury to
or endangering the safety of any person or causing substantial loss to any
person or the State. No attempt was made
by or on behalf of the accused to
discharge the above onus. The Magistrate sentenced him to six years
imprisonment. The accused appealed
to the Transvaal Provincial Division against
the conviction and sentence. That Court dismissed
/ the
3
the appeal against the conviction but reduced the period of imprisonment to
five years. Leave to appeal was granted
by this Division.
At about 8 am on the morning of 15 July 1981 Lt. Van Wyngaard, who was
attached to the Security Police and was then stationed at the
Protea Police
Station in Soweto, received a telephone call from a black man. The name of the
person who called him is not in dispute.
He was Raymond Dhlamini ("Raymond").
Raymond gave him information about a man who was at a house at No. 698 (b) Zola
3, Soweto. Pursuant
to the call Lt, Van Wyngaard, accompanied by members of the
Security Police proceeded to that address. In the kitchen of that house
there
were two black men and two black women. One of the black men later became the
accused and the other was Raymond. These men
were then taken to the police
station. Because of the information which had been given to Lt. Van Wyngaard,
he, together with others
members of the Security Police, later went back to the
house. Warrant-officer Steyn and Warrant-Officer
/ Olivier
4
Olivier searched the yard of the house. They were, because of the information
which had been given to Lt. Van Wyngaard, searching
for a hand-grenade. W/0
Steyn found a brown bag near the fence of the yard, hidden under grass. He
described the bag as a "drasak"
which, so he testified, had been made from a
"streepsak" (grain bag). This bag later became exhibit 1 in the case. He handed
the
bag and its contents to W/0 Olivier. The latter is a trained explosives
expert who had been appointed an inspector of explosives
in terms of the
Explosives Act 26 of 1956. Because of his training he is able to identify, and
is fully conversant with the mechanisms
of, the various types of hand-grenades.
W/0 Olivier confirmed the evidence of W/0 Steyn. In the bag he, so he testified,
found a
Russian Fl hand-grenade in a blue plastic bag. The grenade was wrapped
in newspaper and a white rag. He took the grenade and locked
it in a safe to
which only he and his commanding officer had access.
/ More
5
More as to this aspect later. W/o Olivier went on to say that a photograph of
the grenade was taken (this photograph became exhibit
E); that this type of
grenade contained TNT and RDX which are highly explosive materials; that he did
not examine the contents of
the grenade; that approximately a week and a half
later, in terms of regulations, he destroyed the grenade; this he did after
pulling
out the safety pin; that it thereafter exploded; that it could have
caused death and serious injuries to persons and also damage
to buildings. There
is no doubt that the grenade which W/0 Olivier destroyed was an explosive as
defined in sec. 2(1)(c) of Act 83
of 1967.
It was submitted by counsel, who appeared for the accused in this Court (he
did not appear for the accused in the trial Court nor
did he draw the written
heads of argument), that inasmuch as more than a week had elapsed, from the time
when W/0 Olivier put the
grenade into the safe and
/ the
6
the time when he caused it to explode, it had not been shown that the
exploded grenade was the one found in the yard and put into
the safe. W/0
Olivier testified that, save when the photograph (exhibit. E) was taken, no one
other than himself had handled the
grenade from the time it was found till the
time it was exploded; that he was present during the whole time that the
photograph was
taken; that he had put the grenade into the safe; that he was the
only person who had access to the safe; that had any person other
than himself
wanted access to the safe he would firstly have had to obtain permission from
the station commander and secondly it
could only be done in his presence.
It follows from the above that the grenade found in the yard was the one
which was exploded.
It is convenient at this stage to set out the evidence given by Detective
Warrant-Officer Terblanche. The importance of his evidence
will appear
later.
/ He
7
He testified that he was not concerned with the investigation of the case;
that on 8 October 1981 at 00h30 in the night he, in the
company of a Sergeant
Terblanche, was taken by the accused to a house in Soweto; that they knocked and
one Shadrack Tshitsha ("Tshitsha")
came to the door; that in the presence of
accused Sgt Terblanche told Tshitsha that the accused alleged that he (the
accused) had
obtained a hand-grenade from that house; that Tshitsha looked
startled (verras) when that was said; that Tshitsha's reaction was
to say, in
the presence of the accused, that he had previously seen the accused on one or
two occasions at the house; that the accused
did not react in any way to what
was said by Sgt Terblanche and by Tshitsha; that the accused took them to a
bedroom in the house
and there pointed out two steel trunks; that these trunks
were locked; that Tshitsha could not produce the keys; that they broke
the
padlocks; that they searched the trunks and thereafter the house; that they
/ did
8
did not find a hand-grenade or any explosive; that Tshitsha was taken into
custody. In fact Tshitsha was kept in custody for days
before he was
released.
Tshitsha, a man of 44, testified that he had seen the accused on three
occasions prior to the trial; that on the first occasion, while
he was sitting
in the yard of the house in which he lived, the accused came laughing up to him
and asked him if he had not seen him
(accused) previously in Botswana; that
accused bold him that he had been to Botswana and Tanzania; that he gave his
name as Mandela;
that the second occasion was when he came home one evening and
saw the accused in the kitchen with others having a drink; that he
went past
into the dining-room and that accused came and spoke to him there; that the
accused then showed him three books which he
said had been banned but that the
accused did not allow him to look at the books; that the accused then took out
an article which
looked like a pineapple from a brown bag; that he did not look
closely at the bag;
/ that
9
that the article was similar to the one in the photograph,
exhibit E; that the accused said he was going to destroy
police stations with the grenade and that he could get 200
more such grenades; that he (Tshitsha) had not seen a grenade
or a photograph of one prior to this; that he asked the
accused to leave because "he gave me a fright because this
thing would cause trouble for me". Tshitsha was shown
a bag like a brief
case which he said was not the bag
which the accused had. He was then shown
exhibit 1,
whereupon he said he could not say it was the bag which
the
accused had but that it was similar to that bag. He
further testified that on
the third occasion the accused
came to his house with the police and pointed
him out to
the police. I have already set out W/0 Terblanche's
evidence as
to what transpired on that occasion.
In the voluminous written heads of argument it was submitted that Tshitsha
was a single witness on the issue of what transpired on
the first two occasions;
that
/it
10
it was improbable that any person would have behaved as the accused was said
by Tshitsha (who did not know him) to have behaved on
the first occasion; that
no person carrying an explosive or banned books would have behaved as it is said
the accused behaved on
the second occasion; that Tshitsha's evidence as to the
dates of the first two
visits was vague in the extreme and showed that he had
a poor memory and that in al1 the circumstances the Magistrate should not have
placed any reliance on the evidence of Tshitsha As to the submission that
Tshitsha was vague about the exact dates of the first and
second occasions when
he saw accused, all that need be said is that a study of Tshitsha's evidence
shows that although he was uncertain
about the date of the first visit, he
stated that the second visit was in May 1981. As to the improbabilities the
Magistrate was
of the view that the accused was boasting.. There can be no doubt
that the accused was a person who behaved (for lack of better words)
11
in strange ways. More as to his behaviour later. The Magistrate did approach
Tshitsha's evidence as that of a single witness. He
was of the view that he was
a truthful witness despite some minor inconsistencies in his evidence which the
Magistrate found were
due to the time which had elapsed by the time Tshitsha
gave evidence. The Magistrate also had regard to the fact that the evidence
of
other witnesses, viz. Patrick Dhlamini ("Patrick"), Prudence Dhlamini
("Prudence") and Raymond lent credence to Tshitsha's evidence
in that to one or
more of these witnesses the accused had given false names; had stated that he
had been to countries outside the
Republic and stated that he had had training
in fire-arms and explosives. Tshitsha's evidence-in-chief and re-examination
consists
of seven pages. He was cross-examined at inordinate length (57 pages).
There is nothing in his evidence which justifies a finding
that the Magistrate
erred in accepting his evidence. Moreover, there is
circumstantial
/ evidence,
12
evidence, viz, that of the other witnesses and of W/0
Terblanche, which lends credence to Tshitsha's evidence as
to the accused's behaviour. I pause to stress that there
is no room for a suggestion, nor in fact has it been suggested,
that Tshitsha and the other witnesses conspired to inculpate
the accused.
Patrick, a young black man then aged 19, testified that he was in the kitchen
when the accused arrived at his home (at 698(b) Zola
3) at about 19h00 one night
(it would be 14 July 1981); that the accused stated that he had come to see
Raymond (Patrick's brother);
that he then told accused that Raymond had not yet
come home; that his mother and sister were in the kitchen; that the accused then
said that he and Patrick should go outside; that the accused had a brownish bag
about 30 cms. long; that he carried this bag "so
onder sy arm, sy regterhand
hier op sy gehad"; that he did not look closely at the bag; that he could
not
/ say
13
say exhibit 1 was the bag; that when they got outside the accused said he was
hungry; that he, Patrick, then asked his mother for
money and he and the accused
went to the shop and bought eggs; that they returned to the house and that
accused, who had. carried
the bag until then, then entered the house without the
bag; that the eggs were then prepared and the accused was busy eating when
Raymond arrived; that Raymond was surprised to see the accused; that after
greeting each other Raymond and the accused talked in
the kitchen; that he,
Patrick, while in the kitchen, did not sit with them while they were talking;
that he went to bed leaving Raymond,
his mother, his sister and the accused in
the kitchen; that the next morning his mother went to work before he Left for
school at
about 07h45; that a week later the police came and took him to the
police station and questioned him; that he there made a written
statement and
returned home the same day.
/It
14
It was submitted that Patrick's evidence as to the events prior to Raymond's
arrival was that of a single witness and that his evidence
showed him to be
evasive and unreliable. The following matters were urged in support of this
submission.
(a) That at the very outset of his evidence-in-chief Patrick said
that he had not seen the accused before that day at the trial. This
submission
was stressed, in fact put in the forefront, in the written heads of argument. I
find this submission surprising. It appears
from his answer to the very next
question put to him that he had seen the accused on the day the accused came to
the house and asked
for Raymond. If one also has regard to the whole of his
evidence it is obvious that he misunderstood the purport of the question
put to
him. As I read his evidence, it is obvious that he was intending to convey that
he had not seen the accused before the day
the latter came to the house.
/ (b)
15
(b)
That he made no mention of
the fact that on the morning of the arrest of the accused (ie, 15 July 1981) his
mother was annoyed with
Raymond as alleged by Raymond in his evidence. The
answer to this submission is that no questions were put to him on this
aspect.
(c)
That he said that Raymond did not
leave the house after having arrived there in the evening. The answer to this
submission is obvious.
Patrick did not say that he himself remained continuously
in the kitchen. He
in fact said he went to bed and
left the others in the kitchen.
(d) That at one stage in his evidence he said the
accused carried the bag
under his right arm and at another
stage he said the accused had it in his
right hand. I find
no merit in this submission. His evidence quoted
above
explains how the bag was carried. The fact that it was
under his arm
does not mean that his right hand was not on it.
/It
16
It must also be remembered that the accused came into the house and
thereafter walked all the way to the shop and back. If he had
the bag as alleged
by Patrick during that time, it is more than likely that he would at some stage
have had it under his arm and
at others in his hand.
(e)
That he was not told by
Raymond of the latter's experiences while he was in the hands of the security
police. This I do not find improbable
- more particularly when it is remembered
that Raymond did not return home on 15 July 1981 but went to his (Raymond)s
father's home
and stayed there for five days.
(f)
That his evidence, as to the events prior to Raymond's arrival, was
for all practical purposes that of a single witness and the Magistrate
did not
have regard to this aspect when evaluating Patrick's
evidence.
The Magistrate was fully aware of the
importance of Patrick's
/ evidence
17
evidence. It is clear from his reasons for judgment that he approached
Patrick's evidence with the caution required when evaluating
the evidence of a
witness who is the only one who has testified on a particular aspect.
Patrick's evidence-in-chief takes up less than four pages. His evidence in,
cross-examination takes up thirty-seven pages and was
not completed in one day.
It would be surprising indeed if there were not some minor inconsistencies in
the evidence as to the sequence
of events. The Magistrate had ample opportunity
to observe his demeanour and to decide on his credibility. It was suggested that
Patrick had a motive and was part of a conspiracy to inculpate the accused, viz,
to protect Raymond. In this regard it must be remembered
that if he indeed had
any such motive he could have bolstered the case against the accused by being
more positive when asked if exhibit
1 was the bag which the accused had, by
saying that the accused had shown him the
/ grenade
18
grenade, by saying that he heard the accused tell Raymond (as we shall see
from Raymond's evidence) that he, the accused, had left
the Republic and
received training. For all the above reasons I am of the view that the
Magistrate was justified in accepting Patrick's
evidence.
I have set out the evidence of Patrick and Tshitsha and the submissions made
in regard thereto at some length. I have done so because
their evidence directly
implicated the accused in regard to his possession of the hand-grenade. The one
testified that he actually
saw the grenade and was told by the accused what he
intended doing with it. The other testified that he accused had a brown bag on
the evening of 14 July which he did not bring into the house. The next morning
the police found a brown bag which contained a hand-grenade,
hidden in the
garden.
I turn now to examine the circumstantial evidence given by Raymond and
Prudence. I do not find it necessary
/to
19
to detail their evidence and the criticism thereof as fully as was done in
regard to the evidence of Tshitsha and Patrick.
Raymond testified that when he came home that night his mother, his sister
Elizabeth, Patrick and the accused were in the kitchen;
that accused was busy
eating; that he had known the accused from before under the name of Mandela, and
that they were well known
to each other; that he did not know that the accused
would be there; that he and his sister went to another room in the house and
his
sister made a report to him; that he went back to the kitchen where he and the
accused sat and talked; that Patrick, although
in the kitchen, sat a little
distance away from them; that at a certain stage he and the accused went outside
where he told the accused
that his mother was suspicious of the accused and that
she did not want the accused to sleep there that night; that the accused
told
/ him
20
him to speak to his mother and say "daar is niks nie"; that they went back
into the house; that despite his mother's instructions
he allowed the accused to
sleep in his room; that his mother had already gone to bed. Raymond went on to
tell the trial Court that
the accused told him that he had been to Swaziland,
Botswana, Tanzania and Mocambique; that he had received "training" in Tanzania
and Mocambique; that this training was "with fire-arms and also bits of the
bomb". Raymond said the talks which he had with the accused
took place in the
kitchen. He also said that they continued talking when they retired to the
bedroom. Raymond testified that on a
previous occasion the accused had told him
that while he, accused, was in Botswana he had met Raymond's cousin, one Veli
Dhlamini;
that Veli was struggling and sent a message that Raymond should tell
Veli's father to send money and clothes to Veli. Raymond said
he did thereafter
convey this message to his uncle who replied that he did not wish to hear about
Veli's troubles.
/ Raymond
21
Raymond was asked in cross-examination why he
had
telephoned and told the police that the accused was
at his home. The
following extracts from his evidence are
self-explanatory:
"So, the reason why you 'phoned the police was because the accused had got
you into trouble?-- Your Worship, I realised that I will
get into trouble
because even the people at home, your Worship, had nothing to do with me.
Just answer the question. The reason why you reported to the police was
because the accused had got you into trouble with your family?—
Well, what
frightened me more, your Worship, what scared me more is the thing that he
alleged that he had had with him and when they
asked him to give it to them, so
that they put it into the room, he refused it.
Answer the question. The reason why you went to the police was because he had
got you into trouble?— Your Worship, yes, he would
get me into trouble
when it came out that he had been with me and that I had not informed the law
about it.
Now you say that that night someone told you about that thing that he
had?— Yes, my sister told me about it, not the accused.
I suppose she saw this thing?— I think so, because she is the one who
told me.
/ Did
22
Did she tell you that she had seen this thing?— Well, she said that
there was something that the accused had that he did not
want to be placed in
the room.
Did she say what it was?— She said it is a bag your Worship.
Your Worship, since the accused had
this bag, and then they asked him to give them the bag so that they could put
it into the house, if he had not refused with it, they
would not refuse him
accommodation at my home.
So, what are you talking about?-- Your Worship, my sister wanted the accused
to give
her the bag so that she, my sister, could put it into her room."
Raymond, as set out earlier, was taken to the police station with the accused
on 15 July. He was released that day but because he
had disobeyed his mother and
he was afraid of what her reaction would be, he did not return home. He went to
stay with his father
(his parents had parted) for five days.
/It
23
It was submitted in the written heads of argument and by counsel in this
Court that Raymond sought to evade answering questions put
to him, that there
were contradictions in his evidence relating to what the accused told him in the
kitchen and in the bedroom, that
there were conflicts between his evidence and
Patrick's evidence. I do not find it necessary to detail the criticisms. The
record
reflects that this witness's evidence-in-chief (I exclude some 8 pages of
legal argument) took up ten pages. His cross-examination
took up seventy-three
pages. Furthermore, after he had given his evidence-in-chief the case was
adjourned to a date to suit counsel.
Thereafter the case was again adjourned for
three months. I have given full consideration to all the submissions made on
behalf of
the accused. A study of his evidence leaves me in no doubt that the
witness was not evasive. It also leaves me in no doubt that there
are no real
contradictions in his evidence and also no real conflicts between his evidence
and Patrick's. Indeed,
/ having
24
having regard to the inordinate length of the cross-examination and the lapse
of time, it would not have been surprising if there
had been contradictions and
conflicting evidence. I am of the view that the Magistrate's acceptance of
Raymond's evidence cannot
be faulted.
Prudence was 16 years old at the time of the trial. She is Raymond's cousin
and is the sister of Veil. She testified that Veli had
gone to Botswana in 1976
and had not returned; that the accused, who was not known to her, came to her
home in 1981; that he introduced
himself as Selbian Tuli and said that he had
come from Botswana and that her brother Veli had sent him to ask that they send
money,
clothes and food to Veli; that the accused came there a second time and
repeated what he had said the first time;' that on this occasion
the accused
said he himself wanted food; that the accused came a third time with a similar
message; that on
/ each
25
each of these occasions he was carrying a brown bag which was similar to
exhibit 1. She further said that her father's reaction to
the message from Veli
was that he did not want to hear anything about Veli. She further testified that
shortly thereafter she was
asked to go to the police station where she saw a bag
which was similar to the one which the accused carried on each occasion and
which was similar to exhibit 1. It was submitted in the written heads of
argument that she was a single witness whose evidence should
not have been
accepted because it was, so it was argued, improbable that the accused would
have come to the house about Veli on three
occasions and also that having asked
Raymond to give the message to Veil's father, it was. improbable that he would
personally go
to the father's house. It was further suggested that as she had
not known the accused previously, she could be mistaken as to the
identity of
the
/ person
26
person who came on the three occasions. I find no merit in these submissions.
Prudence's evidence-in-chief and reexamination consists
of four pages. The
evidence in cross-examination takes up twenty-five pages. The Magistrate found
Prudence to be a truthful witness.
This finding cannot be challenged.
The accused gave evidence. He denied ever leaving the Republic, being in
possession of a hand-grenade, having received any training,
being in possession
of the bag, exhibit 1, and ever having met witnesses Tshi±sha, Patrick or
Prudence. He admitted sleeping
at Raymond's home and explained how he came to do
so.
The Magistrate, having detailed the evidence given by each State witness and
the accused, gave his reasons for accepting the evidence
of the State witnesses.
I have already given my reasons for saying that he did so correctly. It follows
from this and from a reading
of the accused's evidence, that the
/ Magistrate
27
Magistrate correctly found that the accused's evidence could not be accepted.
The conduct of the accused was in many respects strange.
I refer to the fact
that he gave false names to Raymond, Tshitsha and Prudence; that he told
Tshitsha and Raymond that he had received
training overseas; that he boasted
about his ability to destroy police stations; that he boasted that he could
obtain 200 grenades.
In this regard a question put to Raymond during his
cross-examination may be significant. The import of this question appears from
the following question by the Magistrate to counsel immediately after Raymond
had concluded his evidence:
"
COURT
: Adv. Basslian, during the cross-examination of the previous
witness, Raymond Dhlamini, it was put to the witness that to the witness's
knowledge the accused is regarded as mentally retarded by people who know him.
Is it alleged that the accused is by reason of mental
illness or mental defect
not capable of understanding the proceedings so as to make a proper defence, or
that at the time of the
commission of the offence he suffered from a mental
/ illness
28
illness or mental defect which makes him incapable of appreciating the
wrongfulness of his act or of acting in accordance with an
appreciation of the
wrongfulness of his act?
MR BASLIAN
: Sir, at the..my first consultation with the accused, I
gained the impression that there might be something wrong with him. I discussed
it with my instructing attorney and we actually had him examined by a
psychiatrist. I understand that during the course of his detention
before, I
think it was before his first appearance in Court, the State had him examined at
Sterkfontein. Sir, our psychiatrist, who
is a Dr Alexander M Don, has furnished
us with a report before the commencement of the trial, it was shown to the Stake
Prosecutor,
he does not say, go so far as to say, that he is mentally retarded
or anything like that sir, but what he does say is the following.
Sir,
unfortunately I do not have a clear copy on me at the moment but this can be
handed in."
I have earlier set out my reasons for saying that the Magistrate's findings
of credibility in regard to Tshitsha, Patrick, Raymond
and Prudence are
unassailable. The following factors, already mentioned earlier, also lend
/ credence
29
credence to their evidence: The accused -
(aa) told Raymond and Prudence that he had
been
to Botswana and that Veil had sent a message;
(bb) told Raymond and Tshitsha that he had received training abroad;
(cc) gave false names to Tshitsha, Raymond and Prudence. Mandela was the name
given to both Tshitsha and Raymond;
(dd) took the police to Tshitsha's house;
(ee) did not react when the police, in the presence of the accused, said the
accused had said that he had obtained a grenade from
that house;
(ff) did not react when Tshitsha said to the police, in the accused's presence,
that he had seen the accused on two previous
occasions.
/ It..
30
It must be remembered that it was not suggested that the
above-named persons had conspired to inculpate the accused.
Tshitsha's evidence proves that in May 1981 the accused
showed Tshitsha an article which the accused claimed was
a hand-grenade
which could blow up police stations.
I do not think that that proved that the article was in
fact an explosive.
However that may be, Patrick's
evidence as to the events in the evening of 14
July 1981
and the fact that the police found the grenade (which Olivier
later exploded) on the morning of 15 July, proves that the
accused was in
possession of the grenade on 14 July 1981.
The accused was therefore
correctly convicted.
The accused was convicted of contravening sec.
2(1)(c) of the Terrorism Act No 83 of 1967. That Act
provides for a minimum mandatory sentence of five years. On the 2nd July 1982
the Internal Security Act No 74 of
1982 came into effect. Sec. 73(1) thereof
repealed the
Terrorism Act. It (in sec. 54) provided that conduct
/ such
31
such as the accused's constituted an offence. It did, however, do away with
mandatory minimum sentences. In the written heads of argument
which are dated 6
February 1985 it was submitted that even though the offence was committed before
2 July 1982, the accused was convicted
in August 1982 and. that the mandatory
minimum sentence of 5 years did not apply. It was further submitted that in all
the circumstances
of this case the five year sentence of imprisonment was too
severe and should be reduced. Counsel's attention was drawn to the case
of the
State v Mpetha
,
1985 (3) SA 702
(A). In view of that decision counsel, in
this Court, withdrew these submissions.
I have drawn attention to the
inordinate length of the cross-examination of the State witnesses. This was due
to the fact that irrelevant
matters were investigated and questions were
repeated many times. Counsel also persisted in having small debates with the
witnesses.
The patience of the Magistrate is to be commended.
/It
32
It follows from all the above that the appeal cannot succeed and it is
accordingly dismissed.
0 GALGUT.
KOTZé, JA) HOEXTER, JA) CONCUR.