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[2019] ZASCA 145
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Salzmann v S (755/18) [2019] ZASCA 145; [2020] 1 All SA 361 (SCA); 2020 (2) SACR 200 (SCA) (13 November 2019)
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SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 755/18
In
the matter between:
SALZMANN:
SIEGFRIED
ERNST APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Salzmann: Siegfried Ernst
v
The State
(755/18)
[2019] ZASCA 145
(13 November 2019)
Coram:
Leach, Saldulker, Molemela, Mokgohloa and Mbatha JJA
Heard:
19 August 2019
Delivered:
13 November 2019
Summary:
Criminal procedure – trial of accused commencing in lower
court before
Superior Courts Act 10 of 2013
came into effect on 23
August 2013 – conviction, sentence and unsuccessful appeal to
the high court taking place thereafter
– high court not
competent to subsequently grant special leave to appeal to Supreme
Court of Appeal – such leave to
be granted by latter court –
special leave to appeal applied for but refused – matter struck
from roll.
ORDER
On
appeal from:
Gauteng Division of the High Court,
Johannesburg (Matojane J and Sardiwalla AJ sitting as a court of
appeal):
1 The appellant’s
failure to timeously apply to this court for special leave to appeal
is condoned.
2 The application
for special leave to appeal is dismissed.
3 The matter is
struck from the roll.
JUDGMENT
Leach
and Mokgohloa JJA (Saldulker JA concurring):
[1]
Cell C is a South African mobile cellular company whose website
proclaims it to be one of the top four leading cellular network
providers in this country. On 7 June 2004, a cyber-attack was
launched against Cell C’s computer network. To use a common
expression, its network was ‘hacked’. The invasion
penetrated deeply into the system, and disconnected some 80 per
cent
of it as a result of core network devices becoming non-functional.
[2]
In the search to identify the culprit responsible, suspicion fell
upon the appellant who, until some three weeks prior to the
incident,
had been employed by Cell C as an IT Remote Access System
Administrator. In due course, the appellant was charged in
the
Specialised Commercial Crimes Court, Johannesburg (the SCCC) with
various contraventions of s 86 of the Electronic Communications
and
Transactions Act 25 of 2002 (the ECT Act).
[3]
The trial was protracted. It commenced on 29 October 2005 when the
charges were put to the appellant and he was requested to
plead.
Almost ten years later, on 14 January 2015, he was convicted on two
charges (counts 1 and 3 of the charge) but acquitted
on a third on
the basis that it constituted an impermissible splitting of charges.
On count 1 it was found that he had contravened
s 86(1) by having
unlawfully accessed Cell C’s computer network without authority
or permission; and on count 3 he was convicted
of having contravened
s 86(5) by unlawfully causing data on Cell C’s system to be
modified or altered or destroyed or rendered
ineffective, which
resulted in a partial network failure and constituted a denial of
service to the legitimate users of the system.
On 17 August 2015, the
appellant was sentenced to a fine or 12 months’ imprisonment on
count 1 and to three years’
imprisonment on count 3.
[4]
The appellant appealed against his conviction and sentence to the
Gauteng Division, Johannesburg (the high court) which dismissed
his
appeal on 9 March 2017. The appellant now seeks to appeal to this
court on the strength of leave to appeal having been granted
by the
high court on 5 June 2018. This immediately gives rise to whether the
appeal is properly before this court as the appellant
has not
obtained its leave to so appeal.
[5]
The problem facing the appellant arises from the repeal of the
Supreme Court Act 59 of 1959 (the Supreme Court Act) with effect
from
23 August 2013 when it was replaced by the Superior Courts Act 10 of
2013 (the
Superior Courts Act). As
appears from the dates detailed
above, the appellant’s trial in the SCCC was still proceeding
when the latter Act came into
operation. Up until then, a high court
hearing an appeal from a lower court (and the SCCC is such a court)
was competent to grant
leave to appeal further to the Supreme Court
of Appeal if it dismissed the appeal; and if it refused such leave,
the appellant
could then apply to this court for leave– see eg
Khoasasa
[1]
paras 22-26 and
Gonya
[2]
para 11.
[6]
However, this regime was altered with the commencement of the
Superior Courts Act, s
16(1)
(b)
of which provides that:
‘
an appeal
against any decision of a Division on appeal to it, lies to the
Supreme Court of Appeal upon special leave having been
granted by the
Supreme Court of Appeal’.
In
the light of this development, in
Van
Wyk
[3]
this court, after having subjected the legislation to careful and
detailed examination, found that special leave of this court
[4]
is required when leave to appeal is sought in respect of a high court
decision given on appeal to it and that the high court is
no longer
competent to grant such leave.
[5]
[7]
What appears to have given rise to some confusion, however, is
s 52
of the
Superior Courts Act which
the parties correctly accepted
applies to criminal as well as civil proceedings.
[6]
Inter alia, it provides:
‘
(1) Subject
to
section 27
, proceedings pending in any court at the commencement
of this Act, must be continued and concluded as if this Act had not
been
passed.
(2) Proceedings
must, for the purposes of this section, be deemed to be pending if,
at the commencement of this Act, a summons had
been issued but
judgment had not been passed.
[7]
[8]
The confusion which has arisen, in this case in particular, relates
to the effect of these provisions. As the appellant’s
trial,
which had commenced in 2005, was still on-going before the SCCC when
the
Superior Courts Act came
into operation in August 2013, it was
clearly deemed to be pending under
s 52(2)
at that time. But the
issue which we have to determine is whether that means that the
appeal regime under the Supreme Court Act
is to be applied to the
appellant’s subsequent appeals, particularly his application
for special leave to appeal to this
court, given that his conviction
and sentence in the trial court occurred in 2015, well after the
Superior Courts Act came
into operation. The appellant contended that
the high court, rather than this court, had retained jurisdiction to
grant special
leave to appeal further. The respondent’s
contrary argument was that special leave had to be obtained from this
court.
[9]
Counsel for the appellant supported his argument almost exclusively
upon the decision of this court in
Gonya
. In that
matter, criminal proceedings against the appellant in a regional
court had culminated in him being convicted and
sentenced on 23
August 2012 (as counsel pointed out to us, and we verified from the
original record, it was erroneously reported
in para 1 of the
judgment that the conviction was in August 2008). When leave to
appeal was refused by the regional court, the
appellant applied to
the high court for such leave by way of a petition under
s 309C
of
the
Criminal Procedure Act 51 of 1977
. That application was
refused on 1 March 2013, whereupon the appellant applied to this
court for such leave. On 3 December
2013, after the Supreme Court Act
had been repealed and the
Superior Courts Act brought
into operation,
this court granted leave to appeal against the refusal of the
appellant’s petition in the high court.
[10]
One of the issues this court was called upon to decide in reaching
its decision was whether the appellant’s application
fell to be
dealt with in terms of the
Superior Courts Act or
the Supreme Court
Act. In finding that the Supreme Court Act applied, but
unfortunately without any detailed reasoning, it
concluded that:
‘
The pure
meaning of the words
pending
proceedings
must be interpreted to mean the date on which the appellant’s
proceedings commenced on 21 November 2011. The proceedings
were still
pending as of the date of promulgation of the
Superior Courts Act. It
follows that the matter must be dealt with in terms of the Supreme
Court Act.’
[8]
Later
in the judgment, the court commented that the appellant’s trial
had been conducted when the Supreme Court Act applied
and that leave
to appeal had been sought under the latter Act. It held that in those
circumstances the Supreme Court Act remained
of application.
[9]
[11]
On the basis that the application for leave to appeal was still
pending when the
Superior Courts Act came
into operation, that
conclusion seems correct. But we do have difficulty with the
unreasoned conclusion that the pending proceedings
were those which
had commenced on 21 November 2011 when the charge was put and the
appellant called upon to plead. What was pending
was not the trial
which had culminated in the appellant’s conviction and
sentence, but the application for leave to appeal.
There is a
considerable conceptual difference between, on the one hand, a
prosecution by the State which commences with a charge
being put and
a plea entered and is finalised either when there is an acquittal or
when the accused is convicted and sentenced,
and, on the other hand,
an appeal brought by a person convicted who seeks to have the
judgment against him set aside. To our mind,
trial proceedings are
separate and distinct from subsequent appeal proceedings. The trial
concludes, should there be a conviction,
with the imposition of
sentence. If there is an appeal thereafter, it is a separate
proceeding.
[12]
The reasoning in
Gonya
also flies in the face of the conclusion of this court in the earlier
judgment in
Van
Wyk
which,
as we have remarked, closely analysed the statutory provisions of
relevance. In that matter the appellant was charged with
rape and
sexual assault. Convicted as charged, he was sentenced to an
effective 15 years’ imprisonment on 25 March 2011.
Although the trial court refused an application for leave to appeal,
the appellant petitioned the high court for such leave under
s 309C
of the
Criminal Procedure Act. On
19 March 2013, his petition was
refused in respect of conviction but granted in respect of sentence.
The appeal against sentence
was subsequently heard in the high court
on 25 November 2013, but unfortunately for the appellant, was
summarily dismissed. He
then proceeded in terms of
s 16(1)
of the
Superior Courts Act to
file an application for special leave to
appeal to this court against his sentence. This court posed the
question whether
s 16
of the
Superior Courts Act was
of any
application or whether the high court, which had dismissed the
appeal, had enjoyed the jurisdiction to consider the application
for
leave to appeal. Having analysed the statutory provisions, this court
concluded that the high court did not have such jurisdiction
and that
jurisdiction to hear the appellant’s application for special
leave to appeal against the high court’s dismissal
of his
appeal vested in this court.
[10]
[13]
This conclusion would have been wrong if the appropriate date to
which regard was to be had with the date that the prosecution
commenced, as was held in
Gonya
. But it seems to us that the
decision in
Van Wyk
is undeniably correct as what was pending
when the
Superior Courts Act came
into operation was the appeal to
the high court. Those proceedings terminated thereafter when judgment
on the appeal was given
on 23 November 2013. The subsequent further
application to this court was therefore what may be described as
‘fresh’
proceedings launched when the
Superior Courts Act
was
already in operation, and could not be regarded as ‘proceedings
pending’ when that Act came into effect as it had not
yet been
instituted.
[14]
The final words of
s 52(2)
of the
Superior Courts Act are
determinative of the debate. The section provides that proceedings
are to be deemed to be pending if at the commencement of the
Act a
summons had been issued ‘but judgment had not been passed’.
If it had been the legislature’s intention
for the Supreme
Court Act to have continued to have been of application for all
matters in respect of which proceedings had commenced
by way of the
issue of summons (or in a criminal case the putting of a charge) no
purpose would have been served by adding the
words ‘but
judgment had not been passed.’ All litigation relevant to the
cause on the summons (such as an appeal) would
have continued
thereafter to have been so deemed, irrespective of judgment having
been given. Effect must, however, be given to
those words. Their
clear meaning is that where a proceeding was commenced, it is to be
regarded as ‘pending’ until
such time as judgment has
been passed. Once that event has occurred, it is no longer a pending
proceeding. Any subsequent, fresh
proceedings, such as an application
for leave to appeal or an appeal itself, would not be a pending
proceeding. That, to our mind,
is the clear meaning of s 52(2) and
what this court held in
Van
Wyk
,
a decision further supported by other judgments in other Divisions in
the country.
[11]
[15]
In the light of these circumstances, we are of the view that although
the court reached the correct conclusion in
Gonya
in that
there were pending application for leave to appeal proceedings when
this
Superior Courts Act came
into operation, and that as a result
that appeal was to be determined in terms of the regime of the
Supreme Court Act, it was clearly
wrong to the extent that it had
regard merely to the date the trial proceedings had commenced, but
which had been concluded, to
determine what was ‘pending’
as envisaged by s 52.
[16]
Bearing the above in mind, the high court did not have the
jurisdiction to grant special leave to appeal to this court. The
proceedings pending when the
Superior Courts Act came
into effect was
the appellant’s trial itself. Those proceedings terminated when
the appellant was convicted and sentenced.
The deeming provision in
s
52(2)
of the
Superior Courts Act therefore
has no relevance to the
appellant’s subsequent appeal to this court following the
dismissal of his appeal in the high court.
The latter accordingly had
no jurisdiction to grant leave to appeal to this court. Without this
court giving leave, the appeal
is not properly before us and we have
no jurisdiction to hear it.
[17]
In the light of the possibility of us reaching this conclusion, and
with the consent of the President of this court, the parties
agreed
to argue the matter on the following basis: that the proceedings
before this court would, if necessary
[12]
be regarded as an application to this court for special leave to
appeal against both the appellant’s convictions and sentences;
the failure to timeously bring the application for special leave
would be regarded as condoned; in the event of special leave being
granted, this court may determine the appeal; the matter would
therefore be fully argued as encompassing both an application for
special leave and the merits of the appeal itself.
[18]
Having determined that leave to appeal is required, and accepting
that the failure to apply in time to this court for leave
is to be
condoned, we turn to consider whether leave should be granted. As
the
Superior Courts Act applies
, it must be remembered that
s
16(1)
(b)
thereof prescribes that an appeal against a decision of a Division of
the high court heard on appeal, lies to this court with its
‘special
leave’. What is meant by special leave is now well established.
It is more than merely the reasonable prospect
of success on appeal.
The party applying for such leave has already enjoyed, albeit
unsuccessfully, a right of appeal to the high
court, and so must show
special circumstances which merit a further appeal. As this court
said in
Van
Wyk
:
[13]
‘
This may
arise when in the opinion of this court the appeal raises a
substantial point of law, or where the matter is of very great
importance to the parties or of great public importance, or where the
prospects of success are so strong that the refusal of leave
to
appeal would probably result in a manifest denial of justice.’
[19]
In the present case it is neither suggested that there is a
substantial point of law nor that the matter is of such great
importance to the parties or the public that by its very nature there
are special circumstances demanding it to be heard. The question
then
becomes are there reasonable prospects of success so strong that the
refusal of leave will probably result in a manifest denial
of
justice?
[20]
Bearing that in mind, we turn to deal, first, with the merits of the
appellant’s conviction. As already mentioned, on
7 June 2004 a
cyber-attack was perpetrated against the computer network of Cell C.
The cardinal issue for us to decide is whether
the appellant was the
person responsible. He admitted that Cell C’s system had been
logged into at about the relevant time
from his personal computer,
but alleged that his wife (who was not called to testify) had done so
accidentally and that he immediately
disconnected without doing any
damage to Cell C’s system.
[21]
The appellant argued that the security at Cell C’s network was
in such a dire state that unauthorised access by hackers
could be
easily gained. This, according to the appellant, was due to the
inexperience of the Cell C personnel in charge of its
network and
sloppy security practices, including the failure to change passwords
upon the resignation of staff members with access
to passwords. The
appellant argued further that the investigation into the attack was
conducted in a way which lacked integrity,
particularly in regard to
discovering the machine under attack and the commands issued in the
course of the investigation being
inter-laced with commands issued by
the attackers.
[22]
The appellant submitted that there was at least one other confirmed
instance of unauthorised access on the date and around
the time the
attack is alleged to have occurred. There is no log shown, in terms
of which a connection was established between
the appellant’s
computer and the network devices which were attacked.
[23]
The appellant’s conviction is based primarily on the evidence
of Christopher Marrian, the Information Security Manager
at Cell C at
the time of the attack. During his testimony, Marrian referred to a
number of exhibits that were used in conducting
the investigation
relating to this attack. He stated that on the evening of 7 June 2004
he was called by his senior, Christoph
Schetelich, who informed him
that there was a network failure and that he would have to come to
work. Marrian proceeded to Cell
C’s office and realised that
the critical components of the network were not working. By then
there was a team of network
engineers who were looking at the
problem.
[24]
In order to determine the cause of the problem, Marrian looked at the
network monitoring server (NMS) and the access control
server (ACS)
because everything on the network is logged there. He noticed on the
ACS that commands had been executed on the network
devices to delete
the configuration data. These commands had been executed by the NMIS
user (a system account used by the NMS to
access all the network
devices) to access all the network devices. At that stage it looked
as if the entire network was down because
Cell C’s call
switches were down.
[25]
He observed that about 23 of their network devices had been logged
onto and their configurations erased. He noticed further
that whoever
had logged on to the system had dialled up to the Cell C network
through the dial-up procedure. That same evening
Marrian extracted
the information from the NMS and saved it in what is known as the
chrisNB file. The report by Superintendent
Grobler corroborated the
evidence of Marrian that the data from the NMS was extracted on the
evening of 7 June 2004 and had been
saved in the chrisNB file.
[26]
Marrian stated that the logs were automatically generated and had
accurately logged all the connections to the network. He
checked the
file permission and compared the system to the back-up and determined
that the ACS was running and working properly
and it had not been
affected by the attack. The logs had not been tampered with. He
stated that although it was possible to corrupt
logs with super user
access (unrestrained access), the ACS would show that the log was
tampered with and he would have been able
to determine that from the
logs. According to Marrian, the only super users were the appellant
(whilst still employed at Cell C),
Marrian and Schetelich. The
evidence later showed that there were three other super users,
however, only Marrian, Schetelich and
the appellant had intensive
knowledge of the unique c-login commands which would have been
required by the hacker.
[27]
Marrian referred to exhibit C and D (print-outs of the logs of the
ACS) and explained that when a person logged onto the network
using a
user name and password, the ACS would automatically write to the log
file. According to Marrian, exhibit C is a log of
all the
authentication that occurred on the network and exhibit D is a log
from the same server of all the successful authentications
that
occurred on the network.
[28]
Referring to exhibit C, Marrian testified that the relevant portion
of the dial-up connections were of V Raseroka at 19h30
and T Walter
at 19h38. The connection of T Walter at 19h38 coincided with the call
made at the same time from the appellant’s
house. The T Walter
account was part of the IP pool range and an IP address from this
pool was used to logon to the NMS. The recording
on exhibit C read as
follows: ‘07/06/2004 19:38:02 twalter Tim Walter ISDN
Dial-async/5950 192.168.50.1’.
[29]
From exhibit C it is apparent that at 19:38:02 there was an
authentication entry with the credentials of T Walter and that
the
dial-up had been established to Cell C dial-up number 011 505
5950 via a normal telephone line. The dial-up connection
lasted until
19:59:23. Exhibit D proved that a successful authenticated dial-up
connection had been established to Cell C with
T Walter’s
credentials at 19:38:01. Marrian testified that the IP address
192.168.50.1 was the dial-up router and that when
a user logs onto
the network the dial-up router creates a log event and it is
automatically sent to the ACS for storage.
[30]
The manner the attack was made was explained by Marrian as
follows: The logon to the NMS took place directly from a personal
computer; the commands were issued by the NMIS user and were issued
from the NMS; the relevant commands were issued from
19:47:16
to 19:58:04; the
write erase
command deleted the configuration
but the device would still have been able to read the configuration
from memory; once the device
had been rebooted with the
reload
command the device would not have been able to work as it no longer
could obtain the configuration data from memory; after a
reload
command had been issued, the user’s connection to the specific
device is automatically ended.
[31]
Of importance and connected to exhibits C and D, are Telkom records
(exhibits N, V and W), and exhibit AF, being the images
from the
appellant’s home computer. The Telkom records and the evidence
of Dennis Tessendorf, a nodal point officer at Telkom,
proved that a
call had been made from the appellant’s home landline being
011 622 9713 to Cell C dial-up line 011 505
5950 at
19:37:28. The call had lasted for 1312 seconds (21`minutes and 52
seconds). Marrian testified that it normally took about
20 seconds to
dial-up to the network. The call according to exhibit N had been
initiated at 19:37:28 and the successful authentication
on the
network as per exhibit D had taken place at 19:38:01. It is to be
noted at this stage that the connection by V Raseroka
was
successfully authenticated on the ACS at 19:06:32. According to
Telkom records this call commenced at 19:06:28 and lasted for
1435
seconds. This means that the connection lasted until 19:30:23.
Exhibit C also reflected an entry with V Raseroka’s credentials
at 19:30:24 which was a log-off. It is therefore clear that when the
call was made from the appellant’s computer at 19:38,
V
Raseroka was no longer dialled up.
[32]
The images from the appellant’s home computer (exhibit AF) were
used during the trial. Marrian, working on this computer,
clicked on
the Cell C dial-up program on the appellant’s computer and
noticed that T Walter’s user name was in the
username field and
the password had been saved. The dial-up number of Cell C was
entered. Marrian determined from the system log
on the appellant’s
home computer that it had successfully been connected to Cell C’s
system on 7 June 2004 at 19:39:11
using T Walter’s login
credentials. This connection lasted until 20:00:29.
[33]
Michael Donovan Köhn, the appellant’s expert witness,
confirmed that the home computer of the appellant was used
to dial up
to the Cell C network with an internal modem via a Telkom line. He
confirmed further that T Walter’s credentials
were used to do
so.
[34]
T Walter’s undisputed evidence was that he did not perform the
dial-up and that the telephone number used was not his
home number.
He stated that on 19 February 2004 he logged a call to the Cell C
helpdesk requesting access to the Cell C network.
His request was
allocated to the appellant. The appellant, who had administrative
access to the ACS, created the username and password
and e-mailed the
credentials together with the dial-up number to him. He experienced
problems with these dial-up credentials and
there was interaction
between him and the appellant concerning this.
[35]
The appellant’s version was that at about 20:00 on 7 June 2004
he was home when his wife called him to his computer.
He noticed a
blank internet page on the computer and ascertained that a connection
had been established to Cell C and not the internet.
He alleged that
such access was accidentally obtained by his wife in the process of
her using the computer and that no damage was
done in the process to
the Cell C network. However, his wife was not called to corroborate
this version, and there was no suggestion
that she was not available
to do so. And the fact that the dial-up from his computer was
at the same time that Cell C’s
computer was hacked by someone
who would have required detailed knowledge of its system, seems to be
just too much of a coincidence.
[36]
Regarding T Walter’s credentials on his home computer and the
subsequent use of these credentials to dial-up, the appellant
explained that whilst employed at Cell C and as an administrator, he
had created the user name and password for T Walter. On 29
February
2004, T Walter experienced problems with the dial-up and he assisted
with the troubleshooting to test T Walter’s
credentials.
This was done from the appellant’s home computer as he did not
have a laptop at work. This, according
to the appellant, resulted in
him saving these dial-up credentials on his home computer.
[37]
As stated earlier, the appellant’s home computer was used as a
workable machine during the trial. Several dial-up connections
dated
as far back as 26 January 2004 were found on his home computer. This
included the connection with T Walter’s dial-up
credentials on
the day of the attack. However, the alleged troubleshooting
connection of 29 February 2004 was not found on
the appellant’s
home computer. Neither did his witness, David Oswald, find any such
previous troubleshoot connection. There
is therefore no evidence of
the troubleshooting on 29 February 2004. This only means that no such
troubleshoot connection was made.
[38]
From the above evidence, the inference is irresistible that the
appellant, with extensive knowledge of the Cell C network,
and not
his wife, intentionally and without authority made a dial-up to Cell
C using T Walter’s credentials. He issued commands
that deleted
the configuration data on Cell C network devices. Therefore, we
cannot find any misdirection relating to his conviction
on either
counts, and there are no circumstances that justify the appellant
being granted special leave to appeal against his convictions.
[39]
Turning to the question of sentence, we did not understand the
appellant to quarrel in regard to that imposed on count 1 but
to
confine his argument in regard to the sentence of three years’
imprisonment imposed in respect of count 3. His counsel
submitted
that the trial court misdirected itself in imposing this sentence as
the appellant was a first offender who comes from
a good background,
and is presently gainfully employed earning a good income. He
submitted that the damages occasioned by the appellant’s
actions were limited. He argued that the trial court failed to take
into consideration that the trial itself took too long to be
finalised and submitted that the offence is not prevalent, and that
the trial court had over-emphasised the retributive and deterrent
objects of punishment and ignored the object of rehabilitation. He
submitted that a sentence suspended on condition that the appellant
compensate the complainant for the damage done, would be appropriate
in these circumstances.
[40]
Section 89 of the ECT Act prescribes a maximum sentence of a fine or
imprisonment not exceeding five years for a contravention
of s 86(5).
The fact that the legislature found it necessary to place this
offence on the statute book is in itself a clear indication
of the
prevalence of the unlawful hacking of others computers and networks.
The offence is by its very nature a severe one. It
invades the
privacy of others, something our law earnestly protects, and may have
far reaching consequences. In the present case
it affected some 80%
of the network of a large mobile cellular operator, and it took a
week to restore the mischief that had been
done. The cost to Cell C
was not trifling. It is so that there is no definite figure on
record, but the two albeit varying estimates
that it lost revenue of
some R76 000 to R 492 000 which, even if not accurately
proved, is an indication that this was
not a piffling affair. And of
course, it was directed at the appellant’s former employer
which indicates at least a hint
of malice. What is also aggravating
in this case is that the appellant breached the trust his ex-employer
had in him. Companies
entrust their employees with serious and
classified secrets hoping that the trust will not be breached. The
appellant did not only
breach the trust Cell C had in him but he
betrayed his former colleague, T Walker, by using his credentials
during the attack to
cover his own tracks.
[41]
In seeking to persuade us that special leave should be granted,
counsel for the appellant made great play on the duration of
the
proceedings and argued that it would not now be fair for him to be
incarcerated. The appellant has been out on bail throughout
and has
not yet been denied his freedom. The fact remains however that it was
he who committed the offence and he who must now
pay the price. The
duration argument is in any event a double edged sword. Throughout
the trial the appellant had the opportunity
of considering what he
had done and making a clean breast of things. He did not, and has
really only himself to blame for the wheels
of justice having ground
as slowly as they did. Furthermore, he has persistently denied guilt,
and still does. He has shown no
remorse whatsoever for his actions
and, indeed, sought to deflect at least a portion of the blame
towards his wife.
[42]
Ordinarily sentencing is a matter which falls within the discretion
of the trial court. An appeal court can only interfere
with the
sentence imposed if such trial court misdirected itself to such an
extent that its decision on sentence is vitiated, or
the sentence is
so disproportionate or shocking that no reasonable court could have
imposed it.
[14]
In the present
case, the appellant not only has to establish a reasonable prospect
of success but must go further and show that
his prospects of success
are so strong that there will be a manifest denial of justice if
leave is not granted.
[43]
In determining a proper sentence for the appellant, the trial court
considered other non-custodial sentences and found that
the
seriousness of the offence warranted a custodial sentence. It further
took all the features relevant to sentence into account.
Bearing the
sentence laid down by the legislature and the severity of this
offence, we are of the view that the appellant has failed
to show
that a manifest failure of justice will occur if he is obliged to
serve a period of three years’ imprisonment. We
would therefore
not grant him special leave to appeal against his sentence on either
count.
[44]
For these reasons the application for special leave to appeal to this
court against both the appellant’s convictions
and sentences
must fail, and the appeal be struck off the roll.
[45]
It is ordered:
1 The appellant’s
failure to timeously apply to this court for special leave to
appeal is condoned.
2 The application
for special leave to appeal is dismissed.
3 The matter is
struck from the roll.
___________________
LE
Leach
Judge
of Appeal
____________________
FE
Mokgohloa
Judge
of Appeal
Molemela
JA (dissenting):
[46]
I have read the first judgment and support its findings in relation
to the appellant’s conviction. I, however, disagree
with its
findings directed at the sentence imposed on the appellant, which in
turn leads me to disagree with its proposed outcome.
[47]
Although
I
agree that, ordinarily, sentencing is within the discretion of the
trial court and that an appellate court’s power to interfere
is
circumscribed,
[15]
I am of the view that the sentence imposed by the trial court is far
too severe and has been vitiated by several instances of material
misdirection. This material misdirection is evident from the
paragraphs that follow.
[48]
In
the first place, the
trial
court has failed to demonstrate that it paid any consideration to the
cumulative effect of the sentences it imposed on the
appellant. It
imposed a sentence of R100 000 or twelve months imprisonment in
respect of count 1, the maximum permissible
penalty envisaged in
respect of that count, nonchalantly mentioning that there were no
grades of unauthorised access to data. I
make reference to this
sentence being well aware of the fact that leave to appeal in respect
of this sentence was refused and its
correctness is therefore not
before us. The context in which I allude to the sentence in relation
to count 1 is merely to make
the point that when the trial court
imposed the sentence in respect of count 3, it disregarded the fact
that counts 1 and 3 were
committed simultaneously and were closely
connected. As such, they were part of the same transaction.
[16]
In so far as the trial court failed to pay due regard to this aspect,
it misdirected itself.
[49]
Second, where a maximum sentence is set out in the penalty clause of
a statute, a court that is considering the crime component
should
consider in each instance the offender’s particular crime and
its seriousness, as opposed to following a rigid approach
that the
maximum sentence set out in the penalty clause is in itself
indicative of the seriousness of that crime.
[17]
The trial court’s failure to take this aspect into account
constitutes a misdirection.
[50]
Third, the following remarks of the trial court reveal that it
materially misdirected itself when considering the sentence
prescribed in the penalty clause of the Act:
‘
Allow
me a few words in relation to the penal provisions of the ECT Act. I
had the opportunity of adjudicating a matter that was
probably one of
the first, well it was even before the ECT Act, where I had the
opportunity of looking at the penal provisions
relating to a hacking
incident, denial of service incident. One of the drafters of the
legislation was one of my assessors and
I think it was generally
accepted by himself and by the authors commenting about that matter
that the penal provisions are sorely
lacking.
The
five year maximum is so vastly inappropriately lined that it comes as
no surprise that there is a need to have it increased
.’
(emphasis added).
[51]
The last remark is disquieting in that it illustrates that while the
legislature identified five years’ imprisonment
as the maximum
sentence in respect of count 3, the trial court considered that
period to be inadequate.
Based on the comments made by the trial court, t
he
irresistible inference is that the fallacious consideration of the
maximum sentence as being inadequate is what in fact led it
to impose
the harsh sentence it eventually imposed on the appellant. It is
clear that the trial court paid no regard to the following
dictum of
this court in
S
v Rabie
:
[18]
‘
A
judicial officer should not . . . strive after severity; nor on the
other hand, surrender to misplaced pity. While not flinching
from
firmness, where firmness is called for, he should approach his task
with a humane and compassionate understanding of human
frailties and
the pressures of society which contribute to criminality’
.
[52]
Fourth, the trial court paid
insufficient regard to the inordinate delay in finalising the
appellant’s trial, which ran for
a period of eleven years from
the date of his first appearance to the date of his sentencing.
Although the trial court stated that
it considered that delay as a
mitigating factor, it is clear from its remarks, which will be
canvassed shortly, that it merely
paid lip service thereto. Of
crucial importance is that the trial court stated that the delay
could not be attributed to the appellant.
I interpose to consider the
remarks made in the first judgment on this aspect. The first judgment
states:
‘
The
appellant has been on bail throughout and has not yet been denied his
freedom. The fact remains however that it was he who committed
the
offence and must now pay the price. The duration argument is in any
event a double-edged sword. Throughout the trial the appellant
had
the opportunity of considering what he had done and making a clean
breast of things. He did not, and has really only himself
to blame
for the wheels of justice having ground as slowly as they did.
Furthermore, has persistently denied guilt and still does.
He has
shown no remorse whatsoever for his actions and, indeed, sought to
deflect at least a portion of the blame towards his wife’.
[19]
[53]
I disagree with the sentiments expressed in that passage, as they pay
insufficient regard to s 35(3)
(d)
of
the Constitution, which entrenches the right to
have
a trial begin and conclude without unreasonable delay.
The
right to be tried without unreasonable delay is a well-established
component of the right to a fair trial dating back to the
decreeing
of the Magna Carta
[20]
more than 800 years ago.
[54]
In
Sanderson
v Attorney-General, Eastern Cape
,
[21]
the
Constitutional Court recognised that an accused person is subject to
various forms of prejudice and penalty, merely by virtue
of being an
accused. That court noted that socially, doubt would have been sown
in the eyes of family, friends and colleagues as
to the accused
person’s integrity and conduct. Of particular significance is
that the court also recognised that i
n
addition to social prejudice, an accused person is also subject to
invasions of liberty that range from incarceration or onerous
bail
conditions to repeated attendance at remote courts for formal
remands. It was observed that this kind of prejudice resembled
the
kind of “punishment” that ought only and ideally to be
imposed on convicted persons. It is also of significance
that the
court
recognised the three basic forms of prejudice which can be caused by
unreasonable delays: loss of personal liberty; impairment
of personal
security; and trial-related prejudice. It observed that ‘of the
three forms of prejudice, the trial-related variety
is possibly
hardest to establish, and here as in the case of other forms of
prejudice, trial courts will have to draw sensible
inferences from
the evidence.’
[55]
That court also said:
‘
Judges
must bring their own experiences to bear in determining whether a
delay seems over-lengthy. This is not simply a matter of
contrasting
intrinsically simple and complex cases. Certainly, a case requiring
the testimony of witnesses or experts, or requiring
the detailed
analysis of documents is likely to take longer than one which does
not. But the prosecution should also be aware of
these inherent
delays and factor them into the decision of when to charge a suspect.
If a person has been charged very early in
a complex case that has
been inadequately prepared, and there is no compelling reason for
this, a court should not allow the complexity
of the case to justify
an over-lengthy delay.’
[56]
Although those remarks were made in the context of appeals relating
to an application for a permanent stay of prosecution, the
principles
laid down in
Sanderson
are, by parity of reasoning, applicable
in this matter. Significantly,
s 35(3)
(d)
of the Constitution, in granting an
accused person the right to have their trial begin and conclude
without unreasonable delay,
does not distinguish between an accused
person that is in custody and the one released on bail.
[57]
In this matter,
despite
the fact that the trial court claimed to have considered the long
delay as a mitigating factor, it evidently paid insufficient
regard
to that aspect. That it paid lip service to the inordinate delay of
the trial is evident from this passage:
‘
The
deterrent aspect, I cannot even begin to understand how you have
lived for the past ten years plus with this hanging over your
head. I
do not have that social context to imagine that. I can only but
assume that it has been hell. For any honest person having
a guilty
conscience to have to carry that for a period of, such a long period
of time must be hell, an inherently honest person
and therefore the
finding of the Court is that the personal deterrent effect of the
aims of punishment is somewhat at the background,
is not so
important. . . . The general deterrent effect however is of more
importance, that persons in the IT Field do not emulate
you, that
there is in the IT community a ripple if that be the case that if you
do this, the Court frowns upon this. You will not
just get a slap on
the wrist. You will not just get employed by the next big company to
be a white hat hacker. There must be consequences.’
[58]
I find it quite ironic that the trial leaned so heavily on the
deterrence element of the aims of punishment despite having
acknowledged that it could not ‘by any stretch of the
imagination’ find that the offence committed by the appellant
was prevalent.
As
correctly stated
in
Nieuwenhuizen
v S,
[22]
‘a
n
offender being sentenced should not be sacrificed on the altar of
deterrence
[23]
and an ‘insensitively censorious attitude is to be
avoided’.
[24]
[59]
It is clear that the trial court did not regard the appellant as
capable of being rehabilitated, emphasising that he had not
accepted
responsibility for his actions.
While
a plea of guilty may, in appropriate circumstances, be regarded as
indicative of remorse, this court has acknowledged that
a
lack
of remorse is not an aggravating factor.
[25]
I am not aware of any judgment of this court that has held to the
contrary. A
n
offender cannot be penalised simply because they wish to challenge
allegations made by the State against them.
The
wrong premise from which the trial court approached the appellant’s
alleged lack of remorse is evident from the following
remarks:
‘
The
court’s point of view has always been up to a few weeks ago
where I did research into remorse again to follow the Appellate
Division, Rhodesian Appellate Division case of
Koen
Deshara
1976 (4) SA 51
where it is,
where the point has been made that if you show true contrition, it is
a mitigating factor. The court went as far in
that matter as to
suggest that the lack of remorse is not an aggravating factor.
However the South African courts have differed
and I take the point
made by your advocate, and Stefan Terblanche similarly makes the
point in this book, that we, the South African
Court have not gone
into the merit of the matter. I think it is a dangerous area to
wander into, but the Supreme Court of Appeal
has indicated that the
court should look into it as an aggravating factor and in this
instance I can, and I might be criticised
for this at a later stage,
but it made a direct difference in the type of sentence that I would
have imposed. True contrition at
this point would have shown the
court that further action would not have been necessary.’
[60]
A
failure to plead guilty alone is not sufficient to
warrant a positive finding that an offender has no prospects of being
rehabilitated.
It is clear from the trial court’s judgment that
n
o regard, whatsoever, was
paid to the fact that it was placed on record that the social worker
who testified in mitigation of sentence
had raised the appellant’s
willingness to pay compensation with the complainant, but the
complainant’s witness had
rejected that offer on the basis that
the trial had dragged on for too long and also stated that he did not
want to make the appellant’s
case ‘easier or more
difficult’, but would rather leave the matter in the hands of
the court. I am of the view that
the appellant’s willingness to
pay compensation was a weighty consideration in determining his
capacity to be rehabilitated.
Instead of taking this into account,
the trial court erroneously stated that ‘there was no mention
of compensation’.
[61]
Emphasising how the appellant had not shown remorse and how this
impacted on his sentence, the trial court stated:
‘ ‘
The
fact that you do not realise what you have done, that you do not own
up to it has caused the Court to come to the following
conclusion,
periodical imprisonment, inappropriately light, a fine equally
inappropriately light in the light of the offence of
which you have
been convicted and the fact that you have not shown any remorse.
Summarily
a sentence in terms of section 276(1)(h) is not appropriate. The
prognosis for you completing such a sentence in the process,
in the
state of mind as it was suggested to me that you do not feel that you
did something wrong, makes the sentence inappropriate
an
inappropriate sentencing option. Similarly in terms of subsection
(i), the realisation and the owning up is in this Court’s
opinion a prerequisite for this Court imposing such a sentence.
I
have taken into consideration various of these sentences taken
together to form an appropriate sentence and I could not come to
a
conclusion that that would form an appropriate sentence.
Imprisonment, wholly suspended, is similarly too light a sentence and
I must be honest, this would have
changed ha[d] you come clean at sentencing stage, you have shown true
remorse, contrition, come
to the witness box and explained why you
have done this, what your motives were. This has not happened and
therefore the Court
comes to the conclusion that on the second count
the only appropriate sentence is a term of direct imprisonment
.
You are sentenced to three years
imprisonment
.’ (emphasis added).
[62]
I am perturbed by the unjustified and startling remarks made by the
trial court in the above extract in the course of determining
the
appropriate sentence. The italicised portion brings to mind the
following remarks made by this court in
S
v Sibisi
,
[26]
with which I am in full agreement:
‘
This
remark was made immediately before the imposition of sentence and
would appear to have been taken into account in its determination.
As
such, in my view, it amounts to a misdirection and renders the whole
sentence open to reconsideration.’
[63]
The judgments alluded to, above, have illustrated that the fact that
an accused person is on bail and not in custody awaiting
trial does
not, in itself, reduce the emotional trauma that comes with facing
prosecution. In
S
v Roberts
,
[27]
this court stated that it would be ‘callous to leave out of
account the mental anguish the [appellant] must have endured’
as a result of the delay between the commencement of prosecution and
the sentencing of the appellant. This, however, does
not mean
that a delay in the finalisation of the trial in itself entitles an
accused person to a free pass or constitutes a windfall.
Its
acceptance as a mitigating factor still does not take away the stigma
and social prejudice that often results from a conviction.
[28]
The fact of the matter is that an unreasonable delay in the
finalisation of criminal proceedings has been recognised as a
mitigating
factor in various judgments of this court, which still
constitute good law.
[29]
[64]
Against the background of the cases discussed in the preceding
paragraphs, it is clear that due regard must be paid to the
fact that
the appellant, for a period of 11 years, had a sword hanging over his
head due to the inordinate delay of the trial.
The delay was systemic
and not of the appellant’s making. The substantial prejudice he
suffered is evident from the fact
that he and his wife took a
conscious decision not to have any children during this period, as
the appellant felt that he would
not want to be responsible to put a
child and his wife ‘through this emotional roller-coaster’.
During that period,
he could also not obtain a fixed working position
other than contract work.
[65]
It has to be acknowledged that the case was a fairly complex one and
that in itself would play a role on the duration of the
trial.
However, a period of eleven years from the date of the first
appearance to the date of sentencing, is an inordinately long
period
of time from any point of view. As the trial court correctly pointed
out, none of the delay could be attributed to the appellant.
I cannot
say the same about the prosecution, because a portion of the delay
was caused by the fact that the state re-called one
of its witnesses
before closing its case. After the testimony of one of the defence
witnesses, the state re-opened its case, which
prompted the defence
to thereafter, re-open its case. One of the postponements was due to
the fact that the state still needed
to consult with a particular
witness as part of the investigation.
[66]
The prosecution seemed content to postpone the case for short periods
of time, and on a number of occasions postponed the case
because it
had been ‘crowded out’ notwithstanding the fact that the
trial had already been running for a number of
years. There seemed to
be no initiative to give preference to this matter in recognition of
the delay in its finalisation. After
lamenting the fact that the
matter could not have been placed on a ‘rolling roll in order
to expedite it’, the trial
court stated: ‘I would have
liked to have dealt with it sooner, but there was nothing to be done
in the manner in which the
lower courts deal with these matters’.
Having already waited a period of eleven years from the date of his
first appearance
on 5 November 2004 to the date of his sentencing in
the SCCC on 17 August 2015, the appellant was to wait for three more
years
for the High Court to finalise his appeal and his application
for leave to appeal. Approximately one year later, his appeal was
enrolled before this court. All in all, the appellant’s case
has been pending in different courts for a period of fifteen
years.
There is no doubt in mind that this ordinate delay ought to be a
weighty mitigating factor counting in the appellant’s
favour,
given all the circumstances of this case.
[67]
While
I have highlighted the various instances of the trial court’s
wrong approach to sentencing, this should not detract
from the
seriousness of the offence committed by the appellant. Nor should it
create
the impression that courts should not visit such offences with severe
penalties.
This
court has previously dispelled the notion that persons convicted of
‘white collar crime’ were not offenders.
[30]
I agree.
At
the end of the day, each case must be considered on its own merits.
The sentence imposed must fit the crime, the offender and
the
interests of the community. In my view, a balanced consideration of
this well-known triad of sentencing constitutes a fundamental
element
of the right to a fair trial.
[68]
The various extracts from the judgment of the trial court attest to
the fact that the triad of sentencing was not properly
considered.
Put simply, its sentencing discretion was not judicially exercised.
In my view, a wholly suspended sentence of
three years’
imprisonment, in respect of count 3, suspended on condition that the
appellant pay compensation to the complainant
in the amount of R100
000, would reflect the seriousness of the offence in proportion to
the personal circumstances of the appellant
and the interests of the
community. Clearly, there is substantial disparity between that
sentence and the sentence imposed by the
trial court, which was
endorsed by the court a quo and is now supported by the first
judgment. The disparity is so marked that
the sentence of the trial
court can be
properly
described as ‘shocking’, ‘startling’ or
‘disturbingly inappropriate’.
[31]
Where
material misdirection by the trial court has vitiated its judicial
exercise of the sentencing discretion, an appellate court
is entitled
to consider the question of sentence afresh. In doing so, it is
entitled to assess the sentence as if it were a court
of first
instance.
[32]
[69]
In
the light of both the disparity and the various instances of material
misdirection I have mentioned above, I conclude that the
trial court
did not exercise its sentencing discretion judicially and that this
court is entitled to interfere.
I
would therefore grant special leave to appeal to this court on the
basis that the errors committed by the trial court regarding
the
sentencing principles constitute
a
substantial point of law that is of great public importance and that
the prospects of success, as highlighted in this judgment,
are so
strong that the refusal of leave to appeal would probably result in a
manifest denial of justice.
[33]
In line with the parties’ agreement that this court may
determine the appeal if special leave to appeal is granted,
[34]
I
would
uphold the appeal against sentence and impose the sentence proposed
in the preceding paragraph of this judgment.
[70]
I have read the judgment of my sister Mbatha JA and agree with the
sentiments she has expressed in relation to the individualisation
of
sentence. The trial court’s reasoning, captured in the various
passages alluded to, above, attests to its failure to individualise
the appellant’s sentence.
_________________
M
B Molemela
Judge
of Appeal
Mbatha
JA:
I
have had the pleasure of reading the majority judgment and the
dissenting judgment. I concur with the order that Molemela JA
proposes in the dissenting judgment on the delay on the finalisation
of the criminal proceedings. I also deem it necessary to deal
with
the issue of sentence.
I
align myself with the views expressed by this court in
Jan
Karel Els v The State
[35]
where this court stated that ‘Furthermore, it remains a
salutary principle of our law that sentences have to be
individualised
to fit the peculiar circumstances of each
accused.’
[36]
In
Malawi,
Kalambo
v Republic
,
[37]
Chatsika J stated that ‘[i]t has been proved in certain cases
that certain persons who are tempted to commit offences thinking
that
they would not be found, refrain from falling into similar
temptations when they have once been found guilty and subjected
to
terms of imprisonment which have been suspended’. In that
regard I am of the view that another court as a measure of
deterrence, may reconsider the sentence of direct imprisonment
imposed on the appellant in this case.
In
the result, I would grant special leave to appeal on sentence to this
court, and concur with the order proposed by Molemela JA.
_______________
YT
Mbatha
Judge of Appeal
Appearances
For
Appellant: WJ Vermeulen SC
Instructed
by: BDK Attorneys, Johannesburg
Honey
Attorneys, Bloemfontein
For
Respondent: SM Maat
Instructed
by: The Director of Public Prosecutions,
Johannesburg
The
Director of Public Prosecutions,
Bloemfontein
[1]
S v
Khoasasa
[2002] 4 All SA 635 (SCA); 2003 (1) SACR 123 (SCA).
[2]
Gonya
v S
[2016] ZASCA 34.
[3]
Van
Wyk
v
S, Galela v S
[2014]
ZASCA 152; [2014] 4 All SA 708 (SCA); 2015 (1) SACR 584 (SCA) para
19.
[4]
The issue of special leave is a matter dealt with later in this
judgment.
[5]
See
further
Maringa
and another
v
S
[2015]
ZASCA 28; 2015 (2) SACR 629 (SCA) para 5 and
Tuntubele
v S
[2014]
ZAWCHC 91 para 11.
[6]
Gonya
para
7 and
Carneiro
v S
[2017] ZASCA 154;
2018
(1) SACR 197 (SCA) para 6.
[7]
Section 27 deals with the removal of proceedings from one court to
another and is of no relevance in the present matter.
[8]
Gonya
para 7.
[9]
Gonya
para 11.
[10]
Van
Wyk
para 24.
[11]
See fn 10 in
Van
Wyk
.
[12]
Which in the light of our finding above is now the case.
[13]
Paragraph 21.
[14]
Bogaards
v S
[2012] ZACC 23
;
2012 (12) BCLR 1261
;
2013 (1) SACR 1
(CC) para 41 .
[15]
S
v Bogaards
[2012]
ZACC 23
;
2013
(1) SACR 1
(CC)
para 41.
[16]
S
v Kruger
2012 (1) SACR (SCA) at para 10.
[17]
S
v Sibisi
1998 (1) SACR 248
(SCA) at 251f-I;
S
v Ingram
1995 (1) SACR 1
(A) at 8j.
[18]
S
v Rabie
1975
(4) SA 855
(A) at 866A-C.
[19]
Para 41 of the first judgment.
[20]
Wikepedia
describes the Magna Carta (the Great Charter) as a document that has
influenced English law and is regarded as the cornerstone
of the
idea of liberty of citizens. The right to access to swift justice
was embodied in the following clause: ‘To no one
will we sell,
to no one deny or delay right or justice’.
[21]
Sanderson
v Attorney-General, Eastern Cape
(Sanderson)
[1997] ZACC 18
;
1997 (12) BCLR 1675
;
1998 (2) SA 38
(2 December
1997) at para 23.
[22]
(20339/14)
[2015] ZASCA 90
(29 May 2015) at para 24
[23]
S
v Muller & another
2012
(2) SACR 545
(SCA); (855/10)
[2011]
ZASCA 151
(27 September 2011) para 9.
[24]
S
v Rabie
1975
(4) SA 855
(A) at 862C-D.
[25]
S
v Hewitt
[2016]
ZASCA 100
at para 16;
Otto
v S
(988/2016)
[2017] ZASCA 114
;
2019 (3) SA 189
(WCC) (21 September
2017); Compare
Duncan
[1998] 3 VR 208
at 214-215.
[26]
S
v Sibisi
1998
(1) SACR 248
(A) at 254
a-e
.
[27]
S
v Roberts
2000
(2) SACR 522
(SCA) at para 22.
[28]
Compare
Sanderson
,
supra, at para 23.
[29]
Also
see
S
v Michele
& another
2010 (1) SACR 131
(SCA) at para 13;
S
v Jaftha
2010 (1) SACR 136 (SCA).
[30]
S
v Barnard
2004 (1) SACR 191
(SCA) at para 15.
[31]
S
v Malgas 2001(1) SACR 469
(SCA)
at para 12.
[32]
Ibid. Compare
Trencon
Construction (Pty) Limited v Industrial Development Corporation of
South Africa Limited and another
(CCT198/14)
[2015] ZACC 22
;
2015 (5) SA 245
(CC);
2015 (10) BCLR
1199
(CC) (26 June 2015) at para 88.
[33]
See
van
Wyk
at para 21.
[34]
See para 18 of the first judgment.
[35]
Jan
Karel Els v The State
[2017] ZASCA 117.
[36]
Jan
Karel Els v The State
para 19.
[37]
Kalambo
v Republic
Criminal Appeal No 199 of 1975 (HC).