S v Manundu and Others (CC18/2020) [2022] ZAECMHC 27 (18 August 2022)

IN THE HIGH COURT OF SOUTH AFRICA

[EASTERN CAPE DIVISION: MTHATHA]

CASE NO. CC18/2020

In the matter between:

THE STATE

vs

MZUBONGILE MANUNDU

Accused No.1

SITHEMBISO YALWA

Accused No.2

SOWISA TYHOKOLO

Accused No.3

SIYABULELA MANUNDU

Accused No.4

ZUKHANYE MANUNDU

Accused No.5

SIKHOKHELE VELEMANI

Accused No.6

NKOSIYOXOLO KAKUDI VELEMANI

Accused No.7

MLUNGISI MANUNDU

Accused No.8

NONTSEBENZO YALWA

Accused No. 9

JUDGMENT ON SENTENCE

JOLWANA J:

[1] The accused have been convicted of very serious offences relating to the extreme violence and torture meted out to a very old woman estimated to be 92 years old at the time of her murder. Her killing was preceded by her being harangued and publicly paraded half naked by the accused some of whom should be her great grandchildren within the Manundu family. When all of this was happening in broad day light, members of the community watched and did not intervene. They allowed their children and grandchildren to watch while an old woman’s dignity as a human being was being stripped away from her as she was degradingly made to suffer and ultimately died a very painful death.

[2] The offences for which the accused have been convicted were committed in circumstances in which the accused believed that the deceased was responsible for or caused the death of Samkelo. Samkelo had been buried the day preceding the attack, torture and brutal killing of the deceased. She was also accused of having caused the death of Sihle who had died in 2018 and accused no.2’s, mother who died a while back. Apparently, after the death of Sihle, a community meeting was held and a resolution was taken that if something similar to Sihle’s death occurred and the deceased’s name was mentioned, she would be banished and her homestead would be burned. There is no clarity about what are the exact details of this resolution or the full circumstances under which it was taken. It does appear that the deceased was suspected of having bewitched Sihle.

[3] The death of Samkelo following a stabbing incident in the Western Cape and the deceased’s rumoured involvement in bewitching him led to her torture and gruesome killing. Suspicions of witchcraft were the only reason for the murder of the deceased, which was committed publicly in full view of the members of the community of Majuba. Some members of that community had gathered at Samkelo’s

home, including the deceased herself, for the purpose of conducting a cleansing ritual after the interment of Samkelo’s remains the previous day. The deceased’s killing was not committed in the still of the night or under the shadows of darkness. It was committed with apparent acquiescence of the members of the Majuba community who did nothing when an elderly woman was abused and tortured on nothing more than gossip mongering by some of the accused and others who claimed to have heard of Samkelo’s bewitching from a young woman, Zintle at a tavern.

[4] Accused no.1, 2, 4 and 8 have been convicted of murder on the basis of the doctrine of common purpose. In charging the accused the State had invoked the provisions of section 51 (1) of the Criminal Law Amendment Act 105 of 1997 citing as its reasons for doing so, the fact that the murder was planned or premeditated and committed by a group of persons acting in the execution or furthermore of a common purpose. With regards to common purpose Section 51 (1) provides that:

“Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person it has convicted of an offence referred to in Part 1 of Schedule 2 to imprisonment for life.”

[5] Part 1 of Schedule 2 (d) reads:

“The offence [murder] was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy.”

[6] The relevant part of section 51 (3) (a) reads as follows:

“If any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and must thereupon impose such lesser sentence.”

[7] Section 51 (3) (a) empowers a court to depart from the imposition of the prescribed minimum sentence in the judicious exercise of its sentencing discretion if it is satisfied as to the existence, in a particular case, of substantial and compelling circumstances justifying a departure. However, in departing from the prescribed minimum sentence, the sentencing court does not have an unfettered discretion. It must do so taking into account that the legislature has provided for the imposition of the relevant prescribed minimum sentence in the relevant circumstances of the case.

[8] In Matyityi[1] Ponnan JA explained the legal position regarding the ambit of the court’s powers to depart from the prescribed minimum sentences

as follows:

“Our courts derive their power from the Constitution and, like other arms of the State, owe their fealty to it. Our constitutional order can hardly survive if courts fail to properly patrol the boundaries of their own power by showing due deference to the legitimate domains of power of other arms of the State. Here parliament has spoken. It has ordained minimum sentences for certain specified offences. Courts are obliged to impose those sentences unless there are truly convincing reasons for departing from them. Courts are not free to subvert the will of the legislature by resort to vague, ill-defined concepts such as ‘relative youthfulness’ or other equally vague and ill-grounded hypotheses that appear to fit the particular sentencing officer’s personal notion of fairness. Predictable outcomes, not outcomes based on the whim of an individual judicial officer, is foundational to the rule of law which lies at the heart of our constitutional order.”

[9] The accused testified in mitigation of sentence after which submissions were made on their behalf in which the court was urged

not to impose the prescribed minimum sentence of life imprisonment. I turn now to look at the evidence of the accused regarding their personal circumstances. Let me start by pointing out that all the accused are first offenders, with no record of previous

transgressions of the law. Accused no.2 was once convicted of escaping or attempting to escape from lawful custody while he was

serving a sentence of six months imprisonment for an offence whose details are unclear. He was convicted in the year 2000 which was about 22 years ago. That previous conviction has fallen away in terms of section 271A of the Criminal Procedure Act 51 of 1977 as the prescribed 10 year period has since elapsed. Therefore, accused no.2, like the other accused, is, for all intents and purposes, a first offender.

[10] Accused no.1 is 36 years old and is unmarried. He has two children, both girls who are still minors. They have separate mothers and stay with their respective mothers. His parents are still alive but do not live together. He was raised by his mother as a single parent. At the time of his arrest he worked in the Western Cape at Wellington Farm where he earned an income which he used to contribute in raising his two minor children. He also supported his mother who receives an old age grant from government. He testified that he believed that as the deceased had said that Samkelo and Sihle were in a trunk, she would be able to take them out of the trunk through magic as he believed in witchcraft. He did not know that things would turn out as they did and therefore apologised for his actions. He was arrested in March 2020 and has been in custody for more than two years now.

[11] Accused no.2 testified that he is now 52 years old. He is widowed with one adult child and a grandchild. His parents are no longer alive. His adult child is unemployed and depended on him financially. He is a subsistence farmer with some goats and cattle which help him to put food on the table for his family. He also did some odd jobs to support his family. He went to school up to standard 7 or grade 9. His health is not good. He suffers from tuberculosis and epilepsy for which he receives treatment. He is struggling in prison due to his poor health condition as the prison is cold. He almost died recently to the extent that he could not eat or speak. His treatment is not always made available on time in prison as he would sometimes be told that it has been ordered. He testified that he imputed witchcraft on the deceased because the deceased had said that his mother was in a trunk. This pained him and therefore he did not commit the crimes willingly but because of the pain he felt. He genuinely believed that his mother who died a long time ago was in a trunk because the deceased said so. He therefore apologised and would not commit the offences again.

[12] Accused no.4 testified that he is 33 years old and is not married. He has two minor children who live with their unemployed mother. His parents are no longer alive. He testified that he is not an unruly person. On that day he was disturbed by the fact that in his presence, the deceased had said that Samkelo and Sihle were in a trunk. He believed in witchcraft. He apologised to the court and said that he accepted the verdict and he will never again involve himself in what happened in this case.

[13] While accused no.7 has not been convicted of murder for which there is a prescribed minimum sentence, his personal circumstances must be considered before he is sentenced. He was instead, convicted of the competent verdict of assault with intent to do grievous bodily harm. He testified that he is 41 years old, is married with four minor children. One of his girl children was doing matric last year. She is now sitting at home because of the lack of funds. His wife is working but on a temporal basis. His mother is not working. Before his arrest he worked for Pool Transport at Worcester in the Western Cape. He was responsible for the financial wellbeing of his family including his children. His family is now struggling since his arrest and incarceration in March 2020. He apologised for not thinking things through and accepting what he was told about the deceased and acting on it. He had learned his lessons from this incident since being in custody for more than two years now.

[14] The evidence of accused no.8 was that he is 40 years old and is not married. He has an 11 year old girl child with the section 204 witness, Nontsebenzo Yalwa. Their child stays with his sister. However, before he and Nontsebenzo were arrested they stayed together

with their child. He earned R1200.00 per week at Rhodes Foods Group Farm in the Western Cape where he worked before his arrest. He went to school up to grade 11 and dropped out. He was arrested on 24 March 2020 and has been in custody since his arrest. He does not have parents but has siblings. He asked the court to be merciful in sentencing him and said that he apologised from his heart for the offences for which he has been convicted. He did not intend to commit those offences and did not foresee the outcomes that they did.

[15] It is fair to say that there is nothing really substantial or compelling about the personal circumstances of all the accused,

considered alone and cumulatively without regard to the issue of their belief in witchcraft. While accused no.2 is, on his word, not in good health, it is difficult to assess the seriousness of his health condition, that is, if he is as sick as he said he is. This difficulty arises from the fact that, there was not a single piece of evidence, no medical records, no medical reports, no witnesses were called at all to give a clear picture about his health condition. In any event and to the extent that he is not in good health, the Department of Correctional Services has a responsibility to look after the health needs of all its inmates. What now remains to be considered is whether or not it would be appropriate to impose the prescribed minimum sentence of life imprisonment in respect of accused no.1, 2, 4 and 8. This brings me to the fact that the accused committed these offences because of their belief in witchcraft. In particular, they believed that the deceased was, through witchcraft, responsible for the death of Samkelo who had been buried the previous day following a stabbing incident in the Western Cape.

[16] There is undisputed evidence that one Sihle died in 2018 under circumstances that are not clear to this Court. There was no evidence led about how Sihle died and how the deceased was suspected of bewitching him. However, the evidence was that after Sihle’s

death there was a community resolution taken by members of the community of Majuba. The resolution was along the lines that the

deceased was warned that if something happened again, similar to what happened to Sihle and the deceased’s name was mentioned, she would be burned or banished. While the details of this resolution are not clear, that it was taken was not disputed by the State. If the word of the accused about what Zintle allegedly said, which in effect was that Samkelo had not died, was in fact alive and what was buried was a shadow or mystical figure is to be believed, Zintle had mentioned the deceased’s name. Accused no.7 even accused the members of the community who were present at Samkelo’s home, of being liars for not implementing that resolution.

[17] I must emphasize that Zintle did not testify in this case. Therefore, the truthfulness of what the accused said she allegedly said about Samkelo could not be confirmed. The evidence of the accused was that they and other people who were present at Samkelo’s home heard what Zintle had allegedly said from one Nicholas who also did not testify in these proceedings. Others heard it from accused no.2, who, if his evidence is anything to go by, had been told about it by Nocholas. They may even have heard it from accused no.4 who testified that he was present with Nocholas when Zintle allegedly told them that Samkelo was not dead. It is clear that the ground was fertile for misinformation, from rumour mongering, gossiping and even distortions of what Zintle actually said, if anything at all. It also appears that people were still highly emotional as Samkelo had only been buried the previous day. After the accused and some members of the community were told about what Zintle had allegedly said at a tavern, she was woken up early in the morning and brought to Samkelo’s home by accused no.2. She was questioned there with threats of violence if she did not tell the truth. She was beaten up and forced to confirm what she alleged to have said at a tavern the previous night. There is no doubt that the only truth that Zintle was expected to tell was the confirmation of what Nicholas and accused no.4 alleged she had said. Any denial which she tried to do was visited with violence which included beatings by the accused and paraffin being poured on her by accused no.7. Under those circumstances Zintle allegedly mentioned the name of the deceased in the alleged bewitching of Samkelo.

[18] It is clear that pressure was violently exerted upon Zintle to tell the accused and that gathering what their ears were itching to hear. This was that the deceased was, through witchcraft, responsible for the death of Samkelo which she allegedly did. The accused wasted no time in directing their attention to the deceased by violently exerting pressure on the deceased which included beatings, kickings, draggings and the deceased being dragged and driven to her homestead. On arrival at her homestead she was put inside her rondavel which was burning as it had been set alight. It was thereafter closed and secured with a wire from outside by the accused with the deceased inside. The accused then left to board a taxi which was waiting behind the deceased’s homestead. The accused left the deceased inside the burning rondavel clearly for her to burn to death as the rondavel was closed and secured with a wire from outside.

[19] The deceased somehow managed to escape and was seen running away. She was chased by the accused excluding accused no.7 who had left before entering the deceased’s homestead. Some of the accused were already inside their taxi when they heard that she had escaped. They alighted from it and joined those who were standing next to the taxi in chasing the deceased. They caught up with the deceased behind a toilet at a nearby homestead where she had tried to hide. She was driven back to her homestead with more violence. At this stage the fire had engulfed the rondavel and the flames were too strong with the roof collapsing. The accused therefore, on their own evidence, could not succeed in putting her inside the inferno that the rondavel had become. They dropped her near the door.

[20] Her body was later found inside a drum that contained water with her head down and her feet protruding outside the drum. The evidence suggested that the accused must have attempted to drown her to ensure that she would actually die as they did not succeed in putting her inside the burning rondavel. When she was taken to that drum she must have already died or too weak to be able to inhale water Dr Jwaqa, a forensic pathologist, testified that there was no evidence of water inhalation or drowning as a possible cause of death which he therefore excluded. Dr Jwaqa also testified that the deceased suffered many physical injuries including a depressed skull fracture, a linear skull fracture which he said were normally caused by sticks, rods, fists, stones, a person being thrown against a wall, vehicle collisions and the like. When he opened the skull he observed an acute right extradural haemorrhage and subdural haemorrhage both of which he said were internal bleeding outside and inside the hard cover of the brain. After enumerating a very long list of serious injuries that the deceased sustained, Dr Jwaqa testified that the deceased died of blunt force trauma and the second and third degree burns. He described the second and third degree burns as severe burns. This is a very brief summary of the evidence of what led to the eventual death of the deceased, how she was brutally murdered by the accused and what actually caused her death.

[21] The brutal murder of the deceased was committed by the accused who are evidently not people who are inclined to commit crimes or act violently. In fact, save for accused no.2, all of them are, on the evidence before this Court, your model citizens and exemplary members of the society. Well, until the 15 March 2020 when the extreme form of violence and torture were mercilessly directed at the deceased with a clear determination that she should die a very painful death. That was achieved as nobody in that community really intervened to stop the cruelty and save the life of the deceased. It beggars belief that an elderly defenceless woman at about 92 years of age, should be subjected to such cruelty by people who knew her, all of whom were born and grew up in front of her eyes. One is even more shocked and aghast that the elders of that community allowed the violent abuse of a very old and helpless woman. They watched as the accused were committing this dastardly act. The silence and therefore acquiescence of everyone who saw what was happening led to the death of the deceased. Some of the people who were there were women who, like men, also did nothing to intervene. The accused now face lengthy prison terms when the people of Majuba could have and should have intervened and stopped the madness.

[22] This is yet another form of abuse and violence perpetrated against women in this country. More often than not those accused of witchcraft and are attacked and killed tend to be elderly women who have been living in their communities for decades. It is mostly in their old age that it is suddenly suspected that they are the cause of some form of suffering or death that occurs in a particular family. This is usually based on vague utterances, rumour mongering and gossiping by some or other members of the family who would be looking for someone to blame. In some cases, people even seek and get some form of a confirmation of their suspicions from some of the Sangomas some of whom are not scrupulous about the divination they give. These kinds of behaviour clearly call for lengthy imprisonment terms to send a clear message to everybody who claims to believe in witchcraft that such conduct even on the basis of what is supposedly, a genuine belief in witchcraft is unacceptable and will not be tolerated. It must be firmly rejected as an antiquated stone age belief with no place in a society based on the rule of law.

[23] A court was faced with an almost similar situation in which the cousin of the accused had died in a car accident, in Phama[2] and the accused had shot and killed Mr & Mrs Klaas at their home. In that case the accused had pleaded guilty to the murders and the related offences. The court observed that he was not the kind of person who would ordinarily commit a serious crime. The accused was 32 years old from a simple rural background. He was unmarried with three children to support. He initially worked as a labourer and had the strength of character to improve his lot in life. His family was mystified in their relative’s death. They consulted a Sangoma who told them that the deceased in that matter was kept in a cave in the mountains as a prisoner by a large snake. That Sangoma told them that the deceased in that matter were responsible for their relative’s death. The court, per Jones J, expressed itself as follows and correctly so I might add, before it passed an effective sentence of 12 years:

“I cannot pass a sentence which overlooks the other important considerations which should be weighed in deciding upon a balanced

and proper sentence, namely the seriousness of the offences and the interests of society. I cannot overlook the question of retribution

and the need to do justice to the victims as well as the offender and the question of deterrence, the prevention of crime and the

protection of society. If I should do so, my sentence would not be proportionate and balanced. I would fail in my duty to society. I cannot overlook the fact that two innocent people were deliberately and needlessly done to death.”

[24] I must emphasize that in Phama, unlike in this case, the accused had pleaded guilty. The accused in this case maintained their innocence even suggesting that because there were other people at the deceased’s homestead, the deceased might have been killed by other people other than themselves. The only participation in what happened, that the accused acknowledged, was limited to what the video footage depicted in which they can be seen violently dragging the deceased to the burning rondavel. They even lied under oath distancing themselves from her killing to escape their just punishment for the crimes they committed. What this means is that the accused did not want to take responsibility for their actions. If it was not for the clear evidence of the section 204 witnesses, the accused were clearly determined not to account for their actions. Their pleas of mercy cannot be regarded as a reflection of true penitence. The accused were simply clearly playing with the emotions of the court and basically feeling sorry for themselves in their apologies. However, I am convinced that they can still be rehabilitated. Prospects of rehabilitation cannot be said to be poor or non-existent in their case.

[25] The triad of sentencing was explained by Smallberger JA as follows in Ingram[3]:

“It is trite law that the determination of an appropriate sentence requires that proper regard be had to the triad of crime, the

criminal and the interests of society. A sentence must also, in fitting cases, be tempered with mercy. Murder, in any form, remains a serious crime which usually calls for severe punishment. Circumstances, however, vary and the punishment must ultimately fit

the true nature and seriousness of the crime. The interests of society are not best served by too harsh a sentence; but equally so they are not properly served by one that is too lenient. One must always strive for a proper balance. In doing so due regard must be had to the objects of punishment.”

[26] Accused no.1, 2, 4 and 8 have not really shown the existence of substantial and compelling circumstances that would justify a departure from the prescribed minimum sentence of life imprisonment, if their personal circumstances are looked at without considering the issue of their belief in witchcraft. This is especially so for such a serious crime as the murder of the deceased. However, it is a fact that they would not have acted violently and killed the deceased but for their firm belief that she had something to do with the death of Samkelo and Sihle through witchcraft. They are all not in the habit of committing offences of whatever nature especially violent crimes hence they were all first offenders at ages of between 32 and 50 when they attacked and killed the deceased. They have been in prison for more than two years since March 2020 when they were arrested. This presentence incarceration period must also be taken into account[4].

[27] I must emphasize that before this incident, most of the accused were working for their families in the Western Cape and as such they were exemplary citizens who looked for and did find jobs to feed their families instead of resorting to criminality. Accused no.2 looked after his livestock to put food on the table and even did odd jobs. They were all related to the deceased while accused no.2 was her neighbour. There is no evidence of any issues with her until the passing of Samkelo through a stabbing incident in the Western Cape. For no discernible reasons, the deceased was suspected of being responsible for Samkelo’s death through witchcraft. All this having been said, a very clear message must be sent to the Majuba community and to the society in general that if anyone is attacked on the basis of a senseless belief in witchcraft, courts will sentence them to lengthy imprisonment. This will be so even if in an appropriate case it may not be life imprisonment, depending on the circumstances of each case. There may very well be cases in which, despite an accused’s belief in witchcraft, prescribed minimum sentences would be appropriate.

[28] I take the view that the sentence of life imprisonment would not fit the triad of crime, the accused and the society if the motivation for the crime committed were to be ignored in the overall consideration of an appropriate sentence where it is ascertainable. This is exactly what, in my view, Scheiner JA meant in Fundakubi[5] when he expressed himself as follows:

“[T]he subjective side is of very great importance, and that no factor not too remote or too faintly or indirectly related to the commission of the crime, which bears upon the accused’s moral blameworthiness in committing it, can be ruled out from consideration. That a belief in witchcraft is a factor which does materially bear upon the accused’s blameworthiness I have no doubt.”

[29] The above reasoning was very sound, with respect, in 1948 when the Appellate Division expressed itself as it did in Fundakubi about 75 years ago, as it is now under the Minimum Sentences Act and especially under the new constitutional dispensation. There is no doubt that each case must be assessed on its own factual matrix. I have no doubt that the accused’s belief in witchcraft, whatever views one may have about the morality of the belief itself, had a hugely significant role in the accused acting as they did. It should therefore qualify as a substantial mitigating factor and as such one of the substantial and compelling circumstances of the case that should be considered as provided for in section 51 (3) of the Minimum Sentences Act. The court should examine what motivated the commission of the offence and whether indeed the evidence paints a picture of an accused who acted as he did in committing the offence, subjectively believed that he or his relative had been bewitched by the deceased. In this case the evidence all points to the accused subjectively believing that Samkelo had been bewitched by the deceased and was kept in a trunk in her rondavel, bewildering as that may sound to some in our country.

[30] The test is not objective but subjective in my view. It would be akin to throwing caution to the wind if this Court were not to pay heed to the guidance of Nuggent JA in Malgas[6] in which the court stated the sentencing legal position as follows:

“If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.”

[31] The fact that there was no evidence of witchcraft or the deceased having bewitched the accused or their relatives is of no moment. I do not know if there is ever evidence of witchcraft. It is one of the mysticisms that have been with us for centuries and have steadfastly survived modern civilisation and education. Even those who claim to believe in witchcraft tend to struggle to explain themselves especially the basis of their belief. In other words, the issue is not whether an accused person had a proper basis for believing that he had been bewitched or his relative had been bewitched, but whether he subjectively believed that he had been or his relative had been bewitched by the deceased. On the facts of this case I find that the accuseds’ belief in witchcraft must be considered as a substantial and compelling circumstance to justify a departure from the prescribed minimum sentence of life imprisonment.

[32] Accused no.7 was only convicted of assault with intent to do grievous bodily harm, which is a competent verdict for murder. He was also convicted of imputing witchcraft. He too must receive an appropriate sentence that has regard to all the objectives of punishment, taking into account all his personal circumstances.

[33] In the result the accused are sentenced as follows:

1. Accused no.7 is sentenced to imprisonment for 5 years for assault with intent to do grievous bodily harm, two years of which is suspended for 5 years on condition that he is not convicted of assault with intent to do grievous bodily harm committed during the period of suspension.

2. Accused no.7 is sentenced to two years imprisonment in respect of count 2, imputing witchcraft on the deceased.

3. The sentence referred to in 1 above in respect of accused no.7 shall run consecutively with the sentence of 2 years imprisonment for imputing witchcraft referred to in 2 above. Therefore, accused no.7 shall serve an effective sentence of 5 years imprisonment.

4. Accused no. 1, 2, 4 and 8 are each sentenced to two years imprisonment in respect of count 2, imputing witchcraft upon the deceased.

5. Accused no.1, 2, 4 and 8 are each sentenced to 20 years imprisonment for the murder of the deceased, 5 years of which is suspended for five years on condition that they are not convicted of murder committed during the period of suspension.

6. The sentence of two years imprisonment in respect count 2, imputing witchcraft in respect of accused no.1, 2, 4 and 8 shall run

consecutively with the sentence referred to in 5 above. Therefore, accused no.1, 2, 4 and 8 shall each serve an effective sentence of 17 years imprisonment.

M.S. JOLWANA

JUDGE OF THE HIGH COURT

Appearance

Counsel for the State: L. POMOLO

Instructed by: National Director of Public Prosecutions

UMTATA

Counsel for accused no.1 & 7: V Ntshangase

Instructed by: Legal Aid South Africa

Legal representative for accused no.2: B. Krewu

Legal representative for accused no.4: E.B. Sonqwelo

Legal representative for accused no.8: M. Mahlombe

Date heard: 20 June 2022

Date delivered: 18 August 2022

[1] S v Matyityi 2011 (1) SACR 40 (SCA) para 23.

[2] S v Phama 1997 (1) SACR 485 (ECG) at 487 b-d

[3] S v Ingram 1995 (1) SACR 1 (A) at 8i – 9b.

[4] S v Vilakazi 2009 (1) SACR 552 (SCA).

[5] R v Fundakubi and Others 1948 (3) SA 810 (AD) at 818.

[6] S v Malgas 2001 (1) SACR 469 (SCA) at para 14.