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1991
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[1991] ZASCA 195
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S v Sithebe (90/91) [1991] ZASCA 195 (29 November 1991)
CASE NO. 90/91
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In
the matter between:
BOSTELLA SITHEBE
APPELLANT
and
THE 5TATE
RESPONDENT
CORAM:
VAN HEERDEN, NIENABER JJA
et NICHOLAS AJA
DATE HEARD:
11 NOVEMBER 1991
DATE DELIVERED:
29 NOVEMBER 1991
1
JUDGMENT
NIENABER JA:
The appellant confessed to a spate of crlmes,
including murder. A magistrate recorded his admission that he had collaborated
in four
separate excursions of armed robbery, all committed in and around
Johannesburg within the space of two days, during one of which
someone was
gunned down. The admissibility of that confession was strenuously challenged by
the appellant when he appeared before
Stegmann J and two assessors in the
Witwatersrand Local Division on nine counts: one of murder, five of robbery with
aggravating
circumstances, one of attempted robbery with aggravating
circumstances and two of unlawful possession of respectively a firearm and
ammunition.
That challenge resulted in a trial within the trial. The
appellant testified. He alleged that he had been assaulted and tortured until
he
eventually agreed to confess in terms he was instructed to memorise. A host of
witnesses, in excess of twenty, contradicted him.
Because of his explanation
that the police, and not he, was the source of the contents of
2
the confession, the merits of the charges against him
were to some extent
also traversed. (S v Lebone 1965
(2) SA 837 (A) at 841H-842B; S v Khuzwayo 1990 (l) SACR
365 (A) at
371g-374d). The court below disbelieved the
appellant. His confession was
admitted in evldence.
The trial then proceeded. Some of the witnesses who
testified at the trial within the trial were recalled
by the State and
repeated their evidence on the merits.
The prosecution followed that course
because of what
was declared by this court in S v de Vries 1989(1) SA
228
(A) at 233H-234B:
"It is accordingly essential that the issue of voluntariness should be kept
clearly distinct from the issue of guilt. Thls is achieved
by insulating the
enquiry into voluntariness in a compartment separate from the main trial. In
England the enquiry into voluntariness
is made at 'a trial on the voir dire',
or, simply, the voir dire, which is held in the absence of the jury. In South
Africa it is
made at a so-called 'trial within the trial'. Where therefore the
question of admissibility of a confession is clearly raised, an
accused person
has the right to have that question tried as a separate and distinct issue. At
such trial, the accused can go into
the witness-box on the issue of
voluntariness without being exposed to general cross-examination on the issue of
his guilt. (See
R v Dunga
1934
AD
3
223 at 226.) The prosecution may not, as part of its case on the main issue,
lead evidence regarding the testimony given by the defendant
at the trial within
the trial. See Wong Kam-ming's case supra at 257-8. Similarly, in a case where
the trier of admissibility is
also the trier of guilt (eg a magistrate or a
Judge sitting without assessors), evidence given by an accused person in the
trial
within the trial must be disregarded when the issue of guilt comes to be
considered."
If everything sald during the trial
within the trial was sacrosanct the prosecution evidence on the issue of the
appellant's guilt
- so the State believed - had to be presented afresh.
The
appellant, on the other hand, elected not to testify again. He called only one
witness on a peripheral issue. Mainly on the strength
of his confession, thus
admitted, as well as his pointing out of the scenes of the robberies and certain
admissions he made under
cross-examination during his evidence in support of an
earlier application for bail, juxtaposed, of course, with his own silence
in the
trial on the main issue, the trial court convicted him on all the counts but two
(one of the complainants could not be
4
located to testify (count 7) and the State was unable to prove that the
firearm which the appellant admittedly carried was loaded
(count 9)). The trial
court, applying the law as it then stood, also found that there were no
extenuating circumstances in relation
to the count of murder. He was accordingly
sentenced to death. On the remaining counts, relating to the robberies and the
unlawful
possession of a firearm, the sentences were so structured that he was
sentenced to an effective period of imprisonment of 24 years.
Leave was granted
to him by the court a quo to appeal to this court against his convictions,
against his sentence of death and against
the sentences imposed on the remaining
counts.
The correctness of the convictions was questioned by counsel for the
appellant on a number of grounds.
The first and principal one was that the
court a quo erred in equating the appellant's election not to repeat his
testimony in the
trial within the trial with silence when the trial proper
proceeded on the merits. The merits, or at any rate some of them,
5
were canvassed during the trial within the trial; the appellant did testify
and was cross-questioned about them; consequently, so
it was contended, it was
wrong of the court a quo to have disregarded his evidence and to have treated
the matter as if he remained
silent in the face of a prima facie case against
him.
The trial within the trial was concerned only with the admissibility of
the appellant's confession. But because of the appellant's
explanation that the
contents of his confession were drummed into him by members of the investigating
team, he was cross-examined
on, and evidence was led of, his pointing out of the
scenes where the various robberies took place to police officers who were not
involved in the investigation thereof. This showed that the appellant had
personal knowledge of the circumstances of the robberies
which, in the absence
of any countervailing evidence from him, would justify the inference that he
must have been involved in them
personally. Such knowledge was consistent with
his confession. It also tended to show that the conf ession, made on the same
day
as the pointing out,
6
was voluntary since the appellant, although invited to do so, declined to
report and complain of any assaults committed on him. The
appellant, on the
other hand, dismissed the evidence of the pointing out and the photographs taken
thereof on the ground that it
was all stage-managed by the police.
For the
same reason he was cross-examined and evldence was led about some significant
admissions he made regarding his involvement
in the robberies and the killing,
during evidence whlch he gave in support of an earlier application for bail.
These admissions also
accorded with his confesslon. According to the appellant
he was so intimidated by the presence in court of some of the police officers
who had assaulted him that he simply agreed to anything put to him; the
admissions he made were accordingly tainted.
The court a quo, in a detailed
and well-reasoned judgment, rejected the appellant's explanations and admitted
the confession. Thereafter
the evldence of the pointing out and the admissions
made during the bail application were again tendered. The appellant; through
his
counsel, did not object to
7
this procedure. Nor did he repeat his
cross-examination or his own
testimony. In the result,
as the court a quo pointed out in its
subsequent
judgment on conviction:
"...the evidence of the state witnesses as to the pointing out of the four sites
by the accused to Captain Roux, although tested
by Mr Shapiro's
cross-examination, in the end remained unchallenged by any evidence from the
accused since his evidence in the trial
within a trial must be
disregarded."
So, too, in relation to the
appellant's admissions made
during the bail application, the court a quo said:
"In the present matter the accused himself, while testifying in the trial within
a trial, gave evidence to the effect that he had
been under the pressure of
police threats when he made the relevant admissions in the course of his bail
application on 21 April
1989. Having regard to the decision in S v De Vries,
supra, I consider that such evidence must be
disregarded."
According to counsel for the appellant
the court a quo erred in applying the reasoning of the De Vries case supra to
the present one:
De Vries's case was either distinguishable on the facts, and
hence of no application, or it was wrongly decided. It was wrongly decided
because it failed to recognise that a
8
trial court in the substantive trial has a discretlon to consider evidence
given during the trial within the trial when it would be
fair to an accused to
do so -which is what English legislation, according to counsel, subsequently
provided; and since our rule descends
from the English law this court ought to
follow suit.
I disagree. In my view the dictum from De Vries's case supra
quoted earlier is both correct and in point. Its authority, reinforced
by the
English decisions on which it relied, derived from its own internal dynamics and
remained unaffected by subsequent statutory
changes, if any, to the law in
England. It has been consistently followed by this court (cf. S v Khuzwayo supra
at 372h). The principle
which it exemplifies is that an accused must be at
liberty to challenge the admissibility of an incriminating document at a trial
within the trial without fear of inhibiting his election at the end of the day
-irrespective of whether the document is admitted
or not - of not testifying on
the issue of his alleged guilt. Unless the trial within the trial is treated as
a
9
watertight compartment, with no spill-over into the main trial, that danger
will always exist: for if an accused person's evidence
in the trial within the
trial can legitimately be held against him in the main trial, he might be
obliged to testify again in order
to regain lost ground; and if the evidence of
a State witness, where the merits are at stake, can simply be transplanted into
the
main trial, the accused might be obliged not only to cross-examine fully on
all such issues (lest he lose the opportunity of doing
so later) but to testify
himself in order to neutralise its effect. In principle, unless the parties
stipulate to that effect, neither
the evidence of the accused nor of State
witnesses given during the trial within the trial, ought therefore to be
injected into the
main trial. Of course if an accused decides not to avail
himself of his right to silence, different considerations will apply. But
it is
not necessary, in this case, to delve into matters such as whether the accused
can then be cross-examined on what he had said
earlier about the merits. This
question can be left open, as it was left open in the De Vries case supra at
10
234D. The only live issue, in this case, is whether the court a quo was right
in disregarding the accused's evidence given during
the trial within the trial.
In mý opinion it was. The first ground of criticism raised against the
judgment by counsel for
the appellant is therefore rejected.
In any event it
would not have availed the appellant if his earlier evidence had been
reconsidered. Counsel's point, if I understood
it correctly, was that such
evidence could have mattered if taken into account at the main trial: at the
trial within the trial the
onus was on him
(s 217
of the
Criminal Procedure Act
51 of 1977
), to be discharged on a balance of probabilities; at the main trial
it was on the State, to be discharged beyond a reasonable doubt
- and that, so
it was said, would have made all the difference. I do not think so. In the first
place, the issues are not the same.
Secondly, the court a quo, in its judgment
on the admissibility of the confession, comprehensively rejected the evidence
which the
appellant tendered at the trial within the trial. He was found, for
good reasons, to be a liar.
11
It could therefore not have made any difference to the eventual outcome,
irrespective of the onus, if the same evidence had been taken
into account when
hls guilt was being considered. Once rejected the evidence was worthless.
Nothing happened thereafter to improve
its quality. To have reconsidered it
would have been a futile exercise.
It was also argued that the appellant was
prejudiced when the prosecution witnesses who had testlfied on the merits during
the trial
within the trial were recalled to do the same during the main trial.
This, so it was said, was contrary to an understanding between
the legal
representatives that such evidence would not have to be duplicated. That may be
so. But counsel for the appellant did not
object to such evidence when it was
tendered anew, nor was he deprived of his opportunity of again cross-examining
these witnesses;
in particular he could have called the appellant to counter
their evidence. He did not do so. There was no prejudice to the appellant.
The appellant's second main ground of
12
complaint conslsted of an attack against the ruling of the court below,
provisional at first but confirmed in the main judgment, that
the appellant's
confession was not elicited by force and consequently was admissible in
evidence. The confession was placed before
the court a quo in the form of two
exhibits - exhibit M consisting of the introductory questions and answers
recorded by the magistrate
which was all that the court a quo had before it
during the trial within the trial; and exhibit T which contained the body of the
confession.
The appellant testified, at the trial within the trial, that he
was systematically tortured and terrorized until he was prepared to
consent to
anything suggested to him. He signed a document which had been prepared in
advance and which he was then told to memorize.
For signing this document, he
said, he was rewarded with R5 and given a cool drink. (No such document was
produced in evidence.)
The next day he was taken before a white man. According
to him this was on 7 April 1989. He was not told, he said, that the white
man
was a magistrate. He contradicted
13
himself on whether the statement he made and signed was read back to him.
Exhibit T ranges widely over all the robberies in question,
ánd contains
detailed information which could only have emanated from the appellant himself.
Nevertheless he stated that he
was merely reciting a version dictated to him by
the police.
The State led rebutting evidence from some 20 witnesses,
including the magistrate, his interpreter, and the district surgeon, to whom
the
appellant was taken immediately after the confession was signed by him, and all
of whom denied the appellant's version of events.
The court a quo concluded:
1.
that the evidence of the
prosecution witnesses had not been shaken under cross-examination and that it
was highly improbable that
so many of them, including the magistrate and the
district surgeon, would have conspired to falsify documents, to incriminate the
appellant falsely and to conceal their own iniquity;
2.
that the appellant, on the other hand, proved to be a poor witness
whose evidence was often
14
vague, contradictory and improbable. So, for example, he never complalned of
the assaults and the injuries he suffered when he could
have done so on several
occasions.
The only point about the State case which troubled the court a quo
related to the evldence of David Manyika. He was a policeman and
part of the
investigating team. The appellant was left in his care at 9:00 on 6 April 1989.
It was then, so he stated initially,
that he returned the appellant to the
police cells at Benoni. The time recorded in the Occurrence Book was, however,
9:53. According
to Manyika, when he was recalled as a wltness, that was not
correct: an entry in his official pocket book showed that he arrived
at Kwa
Thema at 10:00 which meant that he must have left Benoni at 9:30 at the latest.
Of course, if the entries in the Occurrence
Book were unreliable, as counsel for
the appellant was at pains to suggest elsewhere in hls argument, the criticism
loses much of
its force. But the real point is that the appellant did not state
that he was tortured during this period. According to him it only
happened
between 10 and 12
15
o'clock that morning. Nor did he allege that Manyika ever assaulted him when
the two of them were alone. This single instance of a
gap of 50 minutes left
unaccounted for in the prosecution evidence, which is not itself particularly
sinister, cannot measure up
to the wealth of material countlng against the
appellant.
In my view the court a quo was right when it admitted the
appellant's confession in evidence.
The next ground of criticism related to
the evidence which the appellant gave during his application for bail. It was
argued that
such evidence should not have been admitted or, if admitted, should
not have told against the appellant.
The appellant's evidence at his bail
application was proved at his subsequent trial by means of
section 235
of the
Criminal Procedure Act, 1977
. Should it have appeared from the evidence in the
trial that his earlier evidence had been induced by threats or compulsion it
would
have affected the weight and cogency of such evidence. (Cf S v Cele
1985
(4) SA 767
(A); S v Shabalala
1986 (4) SA 734
(A) at 745E; 746F-H)). The
appellant did suggest, during the trial
16
within the trial, that he was intimidated at the time
by the mere presence
in court of some police officers
and that this was the reason why he simply agreed with
propositions put to
him by counsel for the State. That
explanation was not, however, repeated
during the trial
proper and apart from being inherently unlikely,
was
rightly disregarded by the court a quo when the
appellant's guilt was
under consideration.
The final suggestion was that the questions
put to him were so ambiguous that his consent meant
nothing. The
propositions to which the appellant
agreed were as follows:
"Jy erken dat jy op 20 Maart 1989 Eerste
Nasionale Bank beroof het van R38
769,95. Is
dit reg? Ja."
And again:
"So jy betwis nie dat dit jy is daar op die
foto regoor teller 2 met 'n vuurwapen in jou
hand waar jy die mense in die bank beroof van
die geld nie? Ja."
Thirdly:
"Beskuldige, jy het ook offisiere vergesel waar jy die volgende bank aan hulle
uitgewys het, 'n Trust Bank, ek gaan die foto's aan
u toon, Trust Bank in
Booysens, Johannesburg, Eerste Nasionale Bank in Elandsfontein en 'n
17
moord waar julle 'n man doodgeskiet het te 9
Kiplingstraat in Alberton, is dit reg?
Ja."
Fourthly,
"Jy erken ook dat jy die
moord daar gepleeg
het? Ja.
Wie het die man geskiet? Boen."
In my view these
admissions are so plaih that the appellant could have been under no illusion
about their meaning. If he wanted the
court to place a different and more
innocent construction on them or if he wanted to explain that he did not
appreciate what was
being put to him, he should have tendered such explanation
in evidence. He elected not to do so. The admissions therefore stand
uncontradicted.
The court rightly took his replies into account as uncontested
material which had a bearing on his guilt.
To sum up, the court a quo was
right in allowing the confession into evidence. Someone who was innocent would
not have confessed in
those terms. In addition the appellant pointed out the
scenes of the various robberies which, in the absence of an explanation to
the
contrary, demonstrated his knowledge
18
of and compllcity in those crimes. The evidence relating to the pointing out
was not challenged. Finally there are the admissions
he made during his bail
application. The appellant elected not to give evidence when the issue of his
guilt was tried. The consequence
is that the confession, the pointing out, and
the admissions he made during the bail application remained uncontroverted by
any evidence
from the appellant. In the result the court a quo was bound to
convict the appellant. The appeal against his conviction must accordingly
fail.
I turn to the appeal against the sentence of death imposed on the
appellant on count 3. That sentence preceded the Criminal Law Amendment
Act 107
of 1990 which inaugurated an entirelý new approach to the imposition of
the death sentence, and which this court is
now enjoined to apply to matters
such as this one which had not yet been finalised at the date of commencement of
the new Act. The
State must now prove aggravating and disprove mitigating
factors.
The appellant was one of a group of three or four men who surrounded the
complainant mentioned in
19
count 1 when he parked his car at the entrance to
his
garage next to his house in Llnden at about 8:00 on
Saturday 18 March
1989. They dispossessed him of his
wallet, his wrist watch and the keys of
his car and
then, at great speed, drove away in the car. They
arrived at Alberton
about an hour later. The appellant
described the incident which followed in
these terms in
his confession:
"— Ons het Alberton toe gery. Bull het bestuur. Ons het daar rondgery in
blanke gebied. Ons sien 'n blanke vrou wie haar voertuig
bestuur. Sy ry 'n
sekere erf in. Ons ry verby. Ons hou stil en ry terug deur agteruit te ry. Ons
hou stil. Bull sit voertuig in neutraal.
Die voertuig het geluier. Bull en Temba
het uitgeklim. Hulle is na die voertuig van dame. Ek het hulle te voet gevolg.
Bull stap
na die bestuurder se kant. Die blanke vrou het begin skree. Ek het
gesien toe blanke vrou haar handsak na die huisdeur gooi. Terwyl
ek na handsak
kyk hoor ek 'n skoot klap. Toe ek omkyk het ek gesien 'n blanke persoon het
neergeval. Die persoon wie ek nie kan sê
of dit 'n man of 'n vrou was nie
het 'n kort wit broek aangehad. Ons hardloop uit die erf uit. Ons klim in
voertuig en ry met Skyline
na Bull se huis in Emdeni,
Soweto."
This version corresponds in broad terms to
the evidence of the State witnesses. Mrs van Graan was
20
waiting for Mrs
van der Merwe who was due to pick her
up at her home. She heard Mrs van der
Merwe's car
arrive. As she opened a side door Mrs van der Merwe
alighted
from her car. It was then that both of them
became aware of the presence of
three black men in the
driveway, each holding a firearm. One of
them
approached Mrs van der Merwe and demanded that she hand
over the keys
of her car. Another approached Mrs van
Graan. The court a quo described the
incident as
follows:
Mrs van der Merwe did not hand over anything; instead, she screamed and threw
both her handbag and her car keys towards Mrs van Graan.
Mrs van Graan did not
manage to catch them and they struck the door by which she had just left the
house. She bent down to pick them
up and as she did so she saw the man who had
caused Mrs van der Merwe to scream. As she straightened up she found herself
facing
a pistol held by a black man standing about three paces from her. He
motioned to her to hand over the handbag and keys she had picked
up. Just at
that moment both witnesses heard a shot which both believed was fired by the
third black man who had remained in the
driveway behind the other two. Thereupon
all three black men ran away. As they did so, Mrs van der Merwe and Mrs van
Graan saw a
White man collapse on the driveway between Kipling Road and the
entrance to number 9. He fell and lay at
the
21
point marked C on the photographs Fl, 2, 3, 4 and 6. Mrs van Graan recognised
him as the 27-year old Mr Rian Lotz who lived with
his parents in the house
across Kipling Road from number 9."
Another witness
whose attention was drawn by the sound of the shot described how she saw Lotz,
the deceased, fall. The three black
men then ran down the driveway towards the
waiting car which they had earlier stolen in Linden and escaped.
The
appellant was convicted of murder on the basis that he and his companions formed
and executed the common purpose to rob while
realising that someone might be
killed in the attempt. (See S v Madlala
1969 (2) SA 637
(A) at 640F-H; S v
Petersen
1989 (3) SA 420
(A) at 425E-F; S v Nzo and Another
1990 (3) SA 1
(A) at
7C-D.) The trial court was unable to make a finding as to the identity of the
person who actually shot the deceased; it was
not proved to have been the
appellant. The appellant was an active participant in the robbery which led to
the death of the deceased.
The robbers came prepared with firearms. They did not
hesitate to use violence when they sensed resistance. The deceased
22
rushed to the aid of two elderly helpless ladies. There is nothing to
indicate that there was any necessity to kill him since he himself
was unarmed.
He was shot down in cold blood. The court nevertheless found, rightly as far as
the appellant was concerned, that the
State had at most proved dolus eventualis
on his part. Two days after the deceased was killed he and his associates
committed two
bank robberies in each of which violence was used, although no one
was fired at. The appellant was involved in both those robberies.
It shows the
measure of the man.
The appellant did not testify on sentence. The matter was
postponed to enable the defence to procure the evidence of a probation officer.
This was done. Her evidence was not particularly helpful. It revealed that the
appellant was 24 years old at the time of the murder.
He left school in 1978 af
ter repeating standard 2. Since then he has been unemployed.
The appellant has several previous convictions, commencing with one in 1982
for robbery and three previous convictions for housebreaking
with
23
Intent to steal and theft, for which he recelved strokes and sentences of
imprisonment respectively.
Clearly he is of a criminal bent to which his
participation in the robberies under discussion bears testimony. He hardly
exemplifies
promising material for rehabilitation.
It was urged upon this
court that the appellant's complicity in the murder should be viewed in the
light of his comparative youthfulness,
his poor social background and his
limited intelligence. Youthfulness can be discounted: the appellant was pursuing
a career as an
adult criminal. That he was brought up in adverse circumstances
and nurtured in an atmosphere of vlolence, I am prepared to accept
- but that
does not in itself mitigate his conduct. As to his supposed "dullness of
intellect", it lacks a proper foundation in the
evidence.
That leaves one
with essentially two factors in his favour. Firstly, that it has not been shown
that the appellant was the one who
fired the shot that killed the deceased and
secondly, that his own state of mind was one of dolus eventualis. Neither
factor, by
24
itself, necessarily precludes the imposition of the death sentence. As always
in matters of this sort it remains a question of degree.
In this case it cannot
be said that the appellant must have realised, when he and his confederates
confronted the two elderly ladies
in a residential area, that there was a
significant degree of risk that someone might be killed. When a bank or a
supermarket is
robbed, the robbers can anticipate countermeasures and resistance
which could readily lead to bloodshed. This was not such a case.
In S v Mthembu
1991 (2) SACR 144
(A) at 147d-f Smalberger JA stated:
"Where a person by his own act, and with direct intent to kill (dolus directus),
causes the death of another, then the greater the
premeditation that preceded
his conduct, the more base his motive, the more brutal, heinous or callous the
crime, the greater will
society's resultant indignation and revulsion be, and
the more readily can the conclusion be reached that such person's deed 'is
so
shocking, so clamant for extreme retribution, that society would demand his
destruction as the only expiation for his wrongdoing'
(S v Matthee 1971 (3) 769
(A) at 771D). However, when dealing with an accused convicted of murder who was
not a perpetrator or co-perpetrator,
and whose
mens
25
rea was not in the form of dolus directus, a sentence of death will rarely be
imperatively called for. This is the situation which
pertains in the present
matter."
It also pertains in this one. In my opinion
a sentence of death is not the only proper sentence. But the crime he committed
remains
deserving of an exemplary severe sentence. Such a sentence, in my view,
would be 20 years imprisonment.
I turn to the appeal against the sentences
imposed in respect of the other counts. It was contended that these sentences,
44 years
imprisonment scaled down to an effective 24 years imprisonment, was so
severe as to justify interference on appeal. I cannot agree.
The trial judge
committed no misdirection- or irregularity in its judgment on sentence. It gave
meticulous consideration to every
point ralsed in the appellant's favour by his
counsel. Neither the approach nor the conclusion of the trial judge can be
faulted.
The sentences imposed are fully justified in the circumstances. They
must stand.
It would not, however, do to superimpose the 20 years imprisonment for the
murder on the effective
26
sentence of 24 years for the remaining crimes. For the same reason that the
trial judge felt obliged to direct that a portion of those
sentences should run
concurrently, so too the sentence for murder must coincide, at least for a
portion thereof, with the other sentences.
That must be done in such a way that
the appellant is to serve an additional six years imprisonment for the murder,
which would result
in an effective sentence of 30 years imprisonment. The
following order is made:
1. The appeal against the conviction
fails.
2.
The appeal against the death sentence in respect of count 3 succeeds.
The sentence of death is set aside and there is substituted
in its stead a
sentence of 20 years imprisonment.
3.
The
appeal against the sentences imposed in respect of the remaining counts
fail.
4.
It is directed that 10 years of the
sentence of 20 years imprisonment imposed in respect of count 3 is to run
concurrently with the
sentence of 10 years imprisonment imposed in respect of
count 1 and that the next 4 years of the sentence in respect
of
27
count 3 is to run concurrently with the sentence of 12 years imprisonment
imposed in respect of counts 4 and 5 together, resulting
in an effective total
sentence in respect of all the counts of 30 years imprisonment.
P.M. NIENABER JA
VAN HEERDEN JA )
) CONCUR NICHOLAS AJA )