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1992
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[1992] ZASCA 191
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S v Esterhuizen (104/91) [1992] ZASCA 191; [1992] 4 All SA 900 (A) (6 November 1992)
CASE NUMBER
: 104/91 H V N
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
MARTINUS JOHANNES
ESTERHUIZEN
Appellant
and.
THE STATE
Respondent
CORAM:
NESTADT, F H GROSSKOPF, JJA,
et HOWIE, AJA
HEARD
: 25 SEPTEMBER 1992
DELIVERED
: 6 NOVEMBER 1992
JUDGMENT
HOWIE, AJA:
Appellant was convicted in a regional court on ten counts of contravening s
14 (1) (b) of the Sexual Offences Act, 23 of 1957, and
one count of contravening
s 2 (1) of the Indecent or Obscene Photographic Matter
2
Act, 37 of 1967. The ten counts were taken as one for sentence and four
years' imprisonment was imposed, three and a half years being
conditionally
suspended. On the remaining count, six months' imprisonment was imposed which
was ordered to run concurrently with
the unsuspended portion of the first
sentence.
Appellant appealed to the Witwatersrand Local Division against the effective
gaol terms and the State applied fcr an increase in sentence.
The appeal and the
application were dismissed but leave was granted to both appellant and the State
to appeal to this court.
The ten counts involved appellant's conducting various forms of masturbation
with eight teenage boys over sundry periods from September
1983 to October 1988.
The eleventh count concerned appellant's possession on 11 October 1988 of
nineteen pornographic video films.
Appellant pleaded guilty to all the charges.
Subsequent to conviction his counsel led evidence in
3
mitigation from Dr J J van Onslen, a clinical psychologist, Pastor L Fulford
of the Rhema Bible Church and Mr L J Liebenberg, a former
colleague of
appellant's in the employ of the South African Broadcasting Corporation
("SABC"). The State, in turn, called evidence
from Captain P Badenhorst of the
Prison Services, Lieutenant W J Botha, of the police Child Protection Unit, Mrs
M J van Ryn, a psychologist,
and five of the complainants on the indecency
charges. During the course of argument in relation to the matter of sentence
appellant's
counsel submitted that community service would be an appropriate
element of a fitting sentence. The court enquired in that regard
whether
appellant's legal advisers had considered obtaining the recommendations of the
National Institute for Crime Prevention and
Rehabilitation of Offenders
("MICRO"). In response, appellant's counsel asked that the hearing be adjourned
so that a report by a
NICRO official could
4
be obtained. In due course the trial resumed and appellant's counsel called
Mrs J E Raath, community service co-ordinator in the employ
of NICRO.
From the evidence given by the five complainants who testified, and from
admissions made on appellant's behalf by his counsel, it
appears that the
offences covered by the first ten counts were committed in the following
circumstances. Appellant, who was 35 years
of age at the commencement of the
five-year period in question, was at all relevant times a compiler and organiser
of musical programs
at the SABC. When he first met the complainants their
respective ages varied from 14 to 17. His
modus operandi
in the case of
each complainant was broadly the same. Having met the complainant he would
invite him to his house. There, appellant
would offer refreshment, including
alcoholic liquor. They would listen to music. After establishing a friendly
relationship, appellant
would show some of
5
the video films in order sexually to arouse the complainant. The films shown
involved explicit scenes of sexual contact between men
and women, women and
women and men and boys. Appellant would then initiate the conduct of which the
State complained. Thereafter
repeated visits would occur. It is not apparent
whether these further visits were prompted by appellant or whether the
complainants
returned of their own accord. Be that as it may, sexual contact
between appellant and six of the complainants, which involved the
acts in
question variously being performed by the one on the other or mutually,
frequently recurred. The acts with one complainant
persisted for more than three
years and with four others for periods between one and three years. The
unavoidable inference from
all the evidence is that those five complainants
allowed themselves to be repeatedly abused by appellant because they were
impressionable
and lacked the judgment and control
6
necessary to enable them to cease their relationship with him. The same
reason probably applied to a major extent in the case of a
complainant who was
involved with appellant for only some two months. However, in his case there was
a further relevant factor. He
was keen to make his way in the music world and
testified that his return visits were occasioned by appellant's having made a
number
of promises to help him further his musical ambitions. He finally
desisted from seeing appellant because those promises were continually
broken.
The complainant just referred to was the only one of those who testified to
claim to have suffered adverse psychological after-effects
as a result of his
involvement with appellant. However, it is clear that apart from his frustrated
musical career there were other
reasons for the unhappiness to which he had
become subject and the trial court was unable to find more than
7
that appellant's conduct had contributed "to a certain degree" to these
psychological problems. As to the remaining complainants,
the magistrate did not
find any of them to have been negatively affected by their contact with
appellant. Moreover, all the complainants
who gave evidence said that they had
since established heterosexual associations.
It remains, as far as appellant's dealings with the complainants are
concerned, to mention that subsequent to his arrest appellant
encountered one of
them in the street and told him not to give any information to the police
regarding what had happened between
them.
Appellant consulted Dr van Onslen shortly after his arrest in October 1988
and on six further occasions prior to the trial. Each consultation
lasted for at
least two hours. Dr van Onslen testified that appellant at the outset begged to
be extricated from his
8
tendencies towards illicit activities of the present sort. He said he
diagnosed appellant, (who had never married) as innately homosexual
and a
paedophile, having
sexual urges
"wat horn met die samelewing en die gereg laat
bots en wat
hy nie kan beheer nie."
For this reason, said the witness, appellant
was
in very urgent need of psychotherapy. This form of
treatment would aim to
sublimate appellant's sexual
needs and to divert them towards sexual
behaviour that
would not be unlawful. Asked about the success rate of
such
treatment, Dr van Onslen said that one could not be
dogmatic but that on a
rough estimation he would assess
it at approximately 65 per cent in his
experience. He
said he found appellant to be an exceptionally
intelligent
and sensitive person in respect of whom the
recommended treatment should be
implemented within the
community where he could retain his employment,
maintain
9
the daily routines of life and associate with members of both sexes. For
these reasons, said the witness, he was in no doubt that
it would be unhelpful
and indeed counterproductive to gaol appellant at all.
Dr van Onslen went on to mention that appellant had told him that after
having to undergo surgery late in 1987 and in the first half
of 1988 for thyroid
cancer he had turned to religion for help. Accordingly he had, since then,
regularly consulted a member of the
clergy. (Later evidence revealed this to be
Pastor Fulford.) Appellant also stressed to Dr van Onslen that the case and its
possible
consequences had placed his employment at the SABC in jeopardy and that
this was the only work for which he was qualified and which
he had over the
years rendered with success and distinction.
As regards appellant's particular sexual proclivities, Dr van Onslen said at
one point in his
10
evidence that it was not the case that appellant was literally unable to keep
himself from physical contact with boys. In argument
before us counsel for the
State sought to rely on this passage as indicating that appellant's conduct with
the complainants was not
compulsive. In my view, however, it is clear from Dr
van Onslen's evidence read as a whole, not that appellant was unable to resist
his sexual desires, but that he was unable to resist boys - as opposed to other
people - being the target of his need to satisfy
those desires. It must follow
that in initiating and persisting in sexual contact with the complainants
appellant's behaviour was
compulsive. The evidence by Dr van Onslen on this
particular score was neither disputed in cross-examination nor contradicted by
other testimony.
Mrs Raath supported the thesis that appellant was not a suitable subject for
incarceration. In her
11
opinion his reformation and punishment were best achieved by imprisonment
suspended on condition that he underwent psychotherapy and
rendered community
service.
Pastor Fulford said she met appellant soon after he started attending the
Rhema Church late in 1988. He told her that he was facing
prosecution for
offences with boys and that he wanted help to enable him to refrain from
homosexual conduct. In counselling him,
said the witness, she gained the
impression that appellant was genuinely remorseful for what he had done and was
committed to improving
his lot.
Mr Liebenberg said he met appellant in 1972. They were then co-employees of
the SABC. Thereafter he got to know appellant as highly
capable and very
enthusiastic and efficient as regards his work. He was also a loyal employee.
The witness considered appellant to
be a "thorough gentleman" and a well-liked
and popular member of the radio and entertainment world. He
12
added that appellant had been nominated for an Artes award (which is
recognition by the industry of excellent achievement but that
the pending
prosecution had
resulted in the nomination being withdrawn.
Turning to the
evidence presented by the State, Captain Badenhorst testified as to the
availability, scope and effectiveness of psychotherapeutic
services in prison.
It is unnecessary to consider her evidence further because the magistrate
accepted the evidence of Dr van Onslen
and Mrs Raath that appellant required
psychotherapy and that it would best be administered to him outside gaol.
Lieutenant Botha presented statistics regarding the marked prevalence of
sexual offences involving minors within the jurisdictional
area relevant to this
case.
Mrs van Ryn gave detailed evidence concerning consultations which she had
with certain of the
13
complainants and her conclusions as to the effect upon them of appellant's
behaviour. It is not necessary to discuss her testimony
for it was, after due
assessment
by the magistrate, found seriously wanting and ignored where it
conflicted with any other evidence.
It remains to say that no previous
convictions were proved against appellant.
Turning to a more detailed consideration of the magistrate's judgment,
certain of his findings have already been mentioned briefly.
Perhaps the most
important of those was his acceptance of the opinions of Dr van Onslen and Mrs
Raath to the effect that appellant's
offences stemmed from his having a
psychological sexual problem, that it required urgent psychotherapeutic
treatment and that such
treatment was undoubtedly best given in an
extra-custodial environment. The magistrate's conclusion in this regard was
entirely justified
by the evidence of the two
14
witnesses referred to. That of Dr van Onslen was fully reasoned and
persuasive. Mrs Raath's evidence was held by the magistrate to
be comprehensive,
thorough and founded upon a proper investigation of appellant as a person.
Despite their evidence, and despite the magistrate's evaluation of appellant
as a useful and productive member of society, the trial
court concluded that
some effective gaol term, although adverse to appellant's interests, was
necessry in respect of the indecency
charges because nothing less would serve
adequately to deter others from the commission of similar offences.
In reasoning his way to that conclusion the magistrate bore in mind that
appellant was a first offender but he said that the offences
with the
complainants were ones which society regarded as very serious and which were
prevalent enough to call for
15
unmistakably stern reaction from the courts. Moreover they were crimes which
were easily committed and very difficult to detect. The
magistrate also found
the
available evidence insufficient - especially in view of appellant's failure
to testify - to show that he was genuinely remorseful.
Notwithstanding resort to
religion after the cancer surgery, appellant had persisted with these offences
until October 1988. Indeed,
the magistrate considered it an aggravating
circumstance that appellant had offended for as long and as often as he had
when, in
the magistrate's view, the evidence was that his conduct was not
compulsive and he could therefore have chosen to desist. The magistrate
referred
to the possible loss of appellant's employment at the SABC but said that there
was no evidence to show that he would in
fact be dismissed.
In short, therefore, the trial court's overall approach to punishment for the
indecency offences seems
16
to have been this. Appellant needed urgent extra-custodial treatment but
because some term of direct imprisonment was unavoidable
it would be a short
term so as not unduly to delay the commencement of treatment.
As to the charge relating to possession of the films, the magistrate found
that this was a serious contravention considering the number
and nature of the
films and the use to which appellant had put them. For that reason, and also
because of the sentence which he felt
bound to impose on the other counts, the
magistrate imposed imprisonment without the option of a fine.
In the intermediate appeal the court
a quo
found that the magistrate
had not misdirected himself and that there was, on the indecency counts, no
disturbing disparity between
the sentence imposed and an appropriate sentence
such as to warrant interference at the instance of either appellant or the
State.
Reverting to the trial court's reasons, it is
17
a matter for comment and commendation that in performing the sentencing
function in this awkward and worrisome case the magistrate
delivered a judgment
significant for
its balance, its careful assessment of the issues and its sympathetic concern
for the rival interests of the offender and the community.
I am nonetheless
satisfied that the magistrate misdirected himself in relation to the question of
compulsion. He said this:
"It is further common cause, and I say this because Dr van Onslen's evidence
was not placed in dispute during cross-examination or
by evidence, that your
acts towards the complainants were uncompulsive acts, in other words that you
had no control over these acts
and that it could be likened to an illness. The
court therefore accepts that you did not act out of compulsion, you were
thus
18
able to choose to desist from these acts, you did not, you persisted in them
with a variety of boys over a prolonged period. This
persistence appears to be
an aggravating factor. The fact that these are not compulsive acts further
indicate that treatment or the
prognosis for treatment is good." In parenthesis,
the last clause of the first sentence appears to contain a contradiction of what
precedes it. There can be no doubt, however, that the magistrate intended to say
that appellant
did
have control and that his problem could
not
be
likened to an illness.
In my view the finding contained in the quoted extract is in conflict with Dr
van Onslen's evidence, the effect of which, as I have
already indicated, was
that appellant was unable to resist seeking sexual contact with boys. The
existence of that inability is
19
strongly consistent with the frequency and persistence with which appellant's
sexual contact with the complainants recurred. The fact
that there was no
evidence to show that appellant had indulged in similar conduct subsequent to
his arrest was referred to on behalf
of the State both at the trial and in this
court but all that conveys is that appellant appeared to have abstained from
sexual contact.
His problem, as the evidence showed, was that when he sought
sexual contact his tendencies compelled him to obtain satisfaction with
boys. As
the magistrate himself elicited when Dr van Onslen was cross-examined about this
apparent six month abstinence:
"So u se nou vir die hof dis soos 'n alkoholis wat ophou drink, maar die
sielkundige probleem is nog nie opgelos nie? - - Is nog daar
en is nog nie mee
gekonfronteer nie".
20
Finally, the magistrate's statement that the prognosis was good, had no basis
in Dr van Onslen's evidence. It was presumably founded
on what Mrs Raath said
she was told by another psychologist. the
important thing however, is that her hearsay evidence in that connection
could not contradict the evidence of Dr van Onslen. It therefore
does not
support the magistrate's conclusion that appellant's attraction to boys was not
compulsive.
The magistrate's misdirection in the present respect was fundamental. It led
him to find the presence of aggravation where he should
have found mitigation
and it must inevitably have influenced his assessment of the offender and the
nature of his crimes.
In addition, there seems to me to be much to be said for the conclusion that
the magistrate also erred in giving insufficient weight
to two other matters:
the very realistic prospect that direct
21
imprisonment would result in appellant's losing the only employment which he
had ever held, which was in effect the cornerstone of
his existence and in which
he functioned securely and successfully; and Dr van Onslen's evidence that
direct imprisonment was contra-indicated
having regard to the attributes and
personality of this particular offender.
However that may be, the misdirection referred to is enough to vitiate the
sentence imposed in respect of the first ten counts. That
sentence must
therefore be set aside, leaving this court at large to consider sentence afresh.
In addition there is nothing in the
judgment of the trial court to show that had
a noncustodial sentence been imposed on the first ten counts direct imprisonment
would
in any case have been imposed on count 11. If anything, the indications
are the other way. As already mentioned, the sentence on
the last count was
partially influenced by the fact that
22
unsuspended imprisonment was being imposed on the other counts. In any event,
if an unsuspended gaol term were not appropriate in
respect of the indecency
offences, the relevant reasons would also make a custodial sentence
inappropriate, on the present facts,
in the case of count 11.
Assessing anew the matter of sentence on counts 1 to 10, it is convenient
first to list the aggravating features of the case, in the
first place appellant
was a mature adult who must have been fully aware that his sexual predilections
were constantly involving him
in anti-social and unlawful behaviour. Making
allowance for the mitigation inherent in the compulsive nature of his
inclinations,
he allowed this state of affairs to continue for years without
taking any steps to obtain professional help. Secondly, and allied
to that
factor, there is the consideration that these offences were not committed in
situations of
23
sudden temptation; the climate for their commission was deliberately
engineered. Thirdly, appellant told one of the complainants not
to assist the
police. Fourthly, he abused the reliance placed in him by the complainant whose
music career he promised to advance.
Fifthly, he employed pornographic films
with which sexually to arouse the complainants.
Before dealing with the mitigating circumstances it is appropriate to discuss
those factors which were said, both at the trial and
on appeal, to operate
extenuatingly but the evidence in respect of which is really no more than
neutral in effect. Firstly, there
is the matter of appellant's alleged remorse.
This was only conveyed to other witnesses. Appellant was not prepared to take
the trial
court into his confidence and give evidence in this regard. The effect
of the available inferences is no more than equivocal. Secondly,
whatever his
commitment to
24
rehabilitative treatment may be, and I accept that he is thus now committed,
it is as consistent with anxiety at his own predicament
as it is with anxiety as
regards what the complainants have suffered. In the third place there is the
evidence of appellant's turning
to religion. This factor is equivocal. He did so
in the beginning because of fear engendered by his suffering from cancer.
Thereafter
he continued to commit indecent acts with boys. The fourth factor is
that the complainants have not been shown to have suffered adversely.
That is
coincidence. It is not the result of any precaution or consideration on
appellant's part. Fifthly, it was argued that in
most instances, if not all, the
complainants must have been willing and consenting parties. The magistrate
accepted that that inference
could well be drawn but he held, rightly, in my
view, that the statutory provision contravened by appellant is there
specifically
to protect minors from
25
their inherent impressionability and gullibility and their lack of judgment
and control. That they reacted as the lawgiver expected
them to is no mitigating
circumstance. Finally, it was stressed that there were no incidents of violence,
coercion or sodomy. Given
the nature of the offence charged, it would have been
aggravating if there had been. It is not mitigating that there were not.
The features which do constitute mitigating circumstances are appellant's
clean record; the fact that his victims were as old as they
were and not
materially younger and more vulnerable; his susceptibility to compulsion; the
personal qualities stressed by Mr Liebenberg;
and appellant's impressive
employment history.
As far as the nature of the indecency offences is concerned, it is true, as
the magistrate held, that they tend more often than not
to be committed
26
clandestinely. This makes detection and solution exceedingly difficult.
Furthermore, society resents detrimental interference by adults
with the young
and innocent. Violation of that innocence arouses the community's indignation
and prompts it to call for measures
to protect its youth. The penalties provided
for are therefore understandable and reflect the seriousness with which the
legislature
viewed any contravention of the provision. However, the obvious need
to deter would-be offenders, and society's desire for retribution,
must be
balanced against the primary need in this type of case and that is, to my mind,
where at all reasonably feasible, to try
first and foremost to achieve, in the
long-term interests of society, the offender's rehabilitation.
The evidence accepted by the magistrate reveals clearly enough that treatment
is urgently necessary and will best be implemented within
society
27
while appellant can be surrounded, as far as possible, by that which is
familiar and supportive. Given that evidence, and given the
role which
appellant's career plays in his life, it is seriously open to question in this
case whether the imposition of any unsuspended
imprisonment was appropriate in
the past or is fitting now.
There are two consequences. Firstly, the cross-appeal cannot succeed.
Secondly, the question whether some short period of incarceration
was possibly
the only appropriate punishment has become unnecessary to decide. The category
of available sentences has been enlarged
by the inclusion of correctional
supervision under
s 276
(l)(h) of the
Criminal Procedure Act, 51 of 1977
. This
form of sentence was not in operation within the magisterial area of
Johannesburg (where appellant lives) at the time of the
trial or the hearing of
either of the appeals. However it has since been brought into
28
operation there with effect from 1 October 1992 (see Proclamation R 115
published in Regulation Gazette 4955 dated 1 October 1992).
The prospect of its
implementation on that date was raised at the hearing of the appeal before this
court and counsel were requested
to make submissions as to the suitability of
this sentence in appellant's instance. Appellant's counsel urged that it was
wholly
appropriate and should be imposed. Counsel for the State fairly accepted
that if the cross-appeal failed and the appeal succeeded,
correctional
supervision would be an appropriate substitute for the magistrate's sentence.
Both were
ad idem
that correctional supervision could now be imposed
notwithstanding that it was not an available sentence before and both were
agreed
that for the imposition of such sentence remittal was unavoidable.
When a magstrate's sentence is set aside on appeal by reason of misdirection
or because it is
29
disturbingly inappropriate and the question of a substitute sentence arises,
a provincial division can impose a new, ameliorated form
of sentence which has
become competent since the trial, without the need for remittal:
Prokureur -
Generaal, Noord - Kaap v Hart
1990 (1) SA 49
(A) . The appeal court is not
limited to imposing such sentence as the trial court should have imposed. The
ratio
is that when the trial court's sentence is set aside the position
is essentially the same as it would have been if the trial court
had, after
conviction, postponed the matter until after the commencement of the statutory
provision which imported the new form of
sentence. It makes no difference here
that this court is the final court of appeal and not the first court of
appeal.
The next question is whether correctional supervision is a suitable sentence
in the present case. The nature and implications of that
form of punishment
30
have been discussed in the as yet unreported judgment of this court in
R v
Die Staat
, case no 132/91, 20 - 36. What is clear is that correctional
supervision is no lenient alternative. It can, depending on the circumstances,
involve an exacting regime, even virtual house arrest. Its advantage is that it
is geared to punish and rehabilitate the offender
within the community, leaving
his work and domestic routines intact, and without the obvious negative
influences of prison. It can
also involve specific rehabilitative treatment and
community service.
The evidence and circumstances in the instant matter, to which I have already
referred, show plainly, in my assessment, that correctional
supervision is the
preferable alternative to incarceration in this case.
That being so, as counsel properly accepted, remittal to the trial court for
the imposition of correctional supervision must follow.
It will be
31
necessary for the report of a probation or correctional officer to be
obtained so that the sentence can be tailored to appellant's
particular
circumstances and the requirements of such rehabilitation program as is called
for in his case. The relevant procedure
permits the mere handing in of such a
report. It is self-evident that handing in could suffice if nothing in the
report were in issue.
If any material dispute were to arise it would be
necessary for the officer concerned to testify. And obviously the parties and
the
court would be at liberty themselves to call evidence in any event on the
question of the terms of an appropriate correctional supervision
order. In this
regard it is necessary to record that the suspended imprisonment imposed by the
trial court was subject i a to two
conditions in particular. One was that
appellant render community service. The other was that he undergo psychotherapy.
When the
matter come before the court a
quo
it was
32
agreed between appellant and the State that the court could take note of, and
act upon, the fact that appellant had already, ahead
of time, as it were,
completed the required community service and commenced psychotherapy. The
investigation and report consequent
upon remittal, as also the consideration by
the magistrate of a fitting correctional supervision order, will obviously take
account
of those considerations.
There remains the sentence on count 11. From what has already been said, it
follows that direct imprisonment is inappropriate on that
count. Counsel
submitted, rightly, I think, that remittal was not necessary in this instance
and that a suitable sentence should
be substituted by this court.
Appellant's contravention of the section in question was a serious one. The
fact that he actually showed the films to the complainants
has already been
taken into account in regard to the first ten counts.
33
However it is permissible to have regard to the fact, as
an
aggravating circumstance on the present count, that
he obviously possessed
the films not merely for his own
viewing but with the intention to show them
to others,
including boys of the complainants' age group. The
statute
provides for a fine of R1000 or imprisonment up
to one year or both. It was
enacted in 1967 and the
penalty provision has remained the same since.
R1000
was then a substantial maximum fine. It is no longer
so. It is
necessary, in my opinion, to impose, in
addition to a fine in that amount, a
suspended prison
term. There are two reasons for doing so. One is to
give
the overall sentence appropriate punitive impact.
The other is, in view of
appellant's history and,
hopefully past, inclinations, to provide a
deterrent
against a repeat contravention. I may say that
appellant's
counsel had no objection to the imposition
of such a sentence, nor did he
suggest that it involved
34
an increase in the magistrate's sentence. There is obviously no increase if
appellant does not offend similarly in future. Only if
the suspended
imprisonment were to be implemented would he, having paid the fine, sustain more
punishment than the magistrate imposed.
However, that would not be a result
solely attributable to his present conviction. Furthermore, assuming an increase
were involved,
appellant was adequately forewarned that an increase in sentence
generally was being sought by the state both in the court
a quo
and in
this court.
In the result the following order is made:
1.
The appeal is allowed and
the cross-appeal is dismissed.
2.
The order of
the court
a quo
is set aside.
3.
The
sentences imposed by the regional court are set
aside.
35
4. In respect of counts 1 to 10 taken together, the matter is remitted to the
regional court (if possible, the magistrate who presided
at the trial) for the
imposition of correctional supervision in terms of
s 276
(1) (h) of the
Criminal
Procedure Act, 51 of 1977
consequent upon-
(a)
investigation and report by
a probation or correctional officer, and
(b)
the hearing of such evidence, relevant to such imposition, as the
parties may seek to adduce and/or the regional magistrate may see
fit to
call.
5. In respect of count 11 the following
sentence is imposed -
36
A fine of R1000 with an alternative of six months' imprisonment and a further
six months' imprisonment suspended for five years on
condition that during the
period of suspension the accused commits no contravention of
s 2
(1) of Act 37
of 1967.
C T HOWIE AJA
NESTADT, JA )
CONCUR F H GROSSKOPF, JA )