S v Manqindi and Another (176/92; 638/92) [1993] ZASCA 107 (2 September 1993)

2 MILNE JA:

On the night of 30 November/1 December 1990 Mr & Mrs Booysen were killed in the farmhouse on their farm which is situated on the outskirts of the Eastern Karoo town of Hofmeyr.

The two appellants (who were respectively Accused 1 and 4) were, with two others, charged with the murder of the Booysens and on various other counts including housebreaking with intent to commit robbery, robbery (with aggravating circumstances as defined) and unlawful possession of fire-arms and ammunition.

The appellants were convicted on both counts of murder and of robbery with aggravating circumstances, and housebreaking with intent to steal and the second appellant was also convicted of the offences involving unlawful possession of fire-arms and ammunition.

3

On the murder charges both appellants were

sentenced to death in respect of each charge. Leave to appeal against the convictions and sentences on the other charges was granted by this Court to the first appellant but refused in the case of the second appellant. In the latter's case therefore we are concerned only with the murder convictions and the sentences imposed in respect thereof.

There is no doubt that the two elderly deceased were murdered. They were brutally attacked with some heavy blunt instrument, in all probability, the instrument which was described as a "tommy-bar" and which appears to be some kind of crowbar. Whoever inflicted the injuries to the deceased clearly did so with the intention of causing their deaths. It is also obvious that the motive was robbery and a number of articles were in fact stolen.

4

The only evidence implicating the first

appellant is the evidence of the witness Elsie Gwegwana and the confession which he made to a magistrate on 10 December 1990.

The evidence of Elsie Gwegwana is to the effect that on 1 December 1990 she saw both the appellants and the person who was Accused No 3 at the trial, together with another person, in her house in Steynsburg. They had a radio/TV combination set with them and "they" were selling it. She obtained money from other people and bought this set for R300 in cash. The trial court accepted Elsie's evidence and indeed there was no reason not to do so. The TV set was satisfactorily identified as the deceased's property, but the trial court rightly found that her evidence did no more than to arouse suspicion that the first appellant was, to some extent, involved in the offence of the previous night and that standing alone, such evidence would not justify a

5

conviction of the first appellant on any of the charges

against him. It follows that if the confession was not rightly admitted against the first appellant he should not have been convicted on any of the charges against him.

The first point raised on behalf of the first

appellant was that the trial court erred in ruling that

in terms of section 217(b)(ii) the onus rested upon the

appellant to prove on a balance of probability that the

confession was not freely and voluntarily made by him.

It appears from the confession that the provisions of

that subsection were satisfied, but it was submitted that

by reason of the answers to certain questions the trial

court should have ruled that the onus remained on the

State to prove the voluntariness of the confession. The

questions and answers relied upon are as follows:

"4. Hoe het dit gebeur dat u na hierdie kantoor gebring is?

Die polisie het gesê dat ek kan hierheen kom en vertel wat gebeur het. Ek het gesê ek wil hier

6

by die landdros kom vertel wat gebeur het".

"18. Het u vantevore 'n verklaring van dieselfde aard in verband met hierdie betrokke voorval gemaak, indien wel, wanneer en aan wie? Ek het net vir Labuschagne daarvan vertel."

(Labuschagne being one of the police team who questioned

the first appellant).

"19. Waarom verlang u dan om die verklaring te herhaal? Ek wil dat dit volle getuienis wees".

"23. Het u enige beserings van enige aard?

Ek het 'n sportbesering aan my bobeen soos ek sokker gespeel het. Linkerkant is by die duim waar die pols begin - geskaaf deur handboeie -(besig om te genees)".

As will appear later these questions and answers are material to the issue as to whether the statement was voluntarily made, but in my judgment there is no substance in the submission that the presumption in terms of section 217(b)(ii) did not apply.

The question for determination therefore is

7

whether the trial court was correct in finding that the

appellant had not discharged the onus. He testified at a trial-within-a-trial held to determine the admissibility of the confession. Briefly summarised, his evidence was that he had made the confession in consequence of repeated assaults on him by the police and as the result of the investigating officer, Capt Grobbelaar, telling him that if he did not make a statement he would be assaulted again. The appellant also adduced the evidence of Maj Volschenk, the head of the prison at Middelburg, concerning the records relating to first appellant's admission to the prison on 10 December 1990. First hand evidence was adduced from Warder Engelbrecht at a later stage after the trial-within-a-trial had concluded and the trial court had ruled that the confession was admissible. The fact that it was adduced at that stage however makes no difference since the ruling was plainly an interlocutory one and it was open to the trial court (had it considered Engelbrecht's evidence necessary to

8

render the records admissible) to reconsider its ruling

in the light of that evidence. The evidence of Volschenk

and Engelbrecht was that first appellant was admitted to

the prison at 6 p.m. on 10 December 1990. He had marks

on his body as follows:

"Valmerk aan linkerarm, krapmerk aan bors en entmerk aan regter bo-arm, vars snymerke aan linkerarm en hand, steekmerk agter linkerskouer".

It must be borne in mind that the confession was made at

4 p.m. on that very day and that it was the appellant's

evidence that he had been assaulted on that very day

before making the confession.

In his evidence the first appellant mentioned no less than nine policemen who he said had been involved in the assaults upon him which caused him to make the confession. They were Const Nel, Special Const Peterson, Capt Grobbelaar, W/O Maasdorp, Const Mbiyose, a policeman called Welthagen, a policeman called Payoyo, a thick-set detective who was not named and Sgt Kruger (whose sole

9

participation was, allegedly, that he provided strips of

material to tie the first appellant down to the table). The only one of these police witnesses who was called by the State to testify at the trial-within-a-trial was Capt Grobbelaar. The other witnesses called by the State during this part of the trial were the magistrate who took the confession, Lt Labuschagne who says that he took appellant to the farm in question and that various spots were pointed out and the interpreter who interpreted for the magistrate when first appellant made his statement.

It is common cause that first appellant was arrested cm Thursday, 6 December 1990 and that despite being questioned on the Thursday and the Friday he did not make any admissions or any confession until the afternoon of Monday, 10 December 1990. First appellant gave a detailed account of the assaults and torture which were inflicted upon him with, so he said, the object of inducing him to confess and he testified that these

10

assaults took place on Thursday and Friday, 6 and 7

December 1990 and on Monday, 10 December 1990.

In my view there are a number of factors which, taken together, should have led the trial court to the conclusion that the first appellant had discharged the onus.

As already mentioned it is quite clear that the first appellant was arrested on Thursday, 6 December 1990 at Middelburg. He says that he was assaulted on that day, on Friday the 7th, and on Monday, 10 December. He made the statement to the magistrate on 10 December 1990. Firstly, it is difficult to understand why he should suddenly have felt inclined to do so after having, it is common cause, obdurately refused to make any admissions on the Thursday or the Friday. Secondly, there was no other evidence implicating the first appellant. Indeed, Grobbelaar admitted in evidence that he realised that the

11

only way to involve the appellant in the crime was to cause him to incriminate himself by making a statement. This calls for a particularly careful assessment of the question of the freedom and voluntariness of the confession. S v Mkwanazi 1966(1) SA 736 (A) at 745 E-H.

Thirdly, we know from the evidence of the prison staff, Major Volschenk and Warder Engelbrecht, that there were injuries on the first appellant. These injuries are not explained at all by any of the police witnesses. Warder Engelbrecht referred to a fresh injury below the elbow in addition to injuries to the first appellant's wrist which appeared to be caused by friction with handcuffs. Grobbelaar agreed in cross-examination that handcuffs do not normally cause injury to the wrists unless one is subjected to some kind of pressure which results in a pulling away from the handcuffs. The State witness Zitho who was the interpreter at the time the confession was taken, corroborated the Warder's evidence

12

that there was a fresh injury to the first appellant's

arm.

The State witness Sipho Jacobs also said that he had been assaulted by Const Nel who is one of the persons alleged to have assaulted first appellant. As already mentioned Nel was not called as a witness.

What is more, in my view, Grobbelaar's evidence that the first appellant said that he wished to make a statement to a magistrate after he advised the first appellant of his "right" to do so (against the background that the first appellant had obdurately refused to make any admissions whatever over a period of three days of questioning), seems to me to be inherently improbable and furthermore, a remark that could not possibly in the circumstances have suddenly produced a desire on the part of the first appellant which he did not have before, to make a confession.

13

The trial court ruled however that the first appellant had not discharged the onus. The reasons for this ruling may, I think, fairly be summarized as follows:

1. The appellant was a poor witness.

2. His evidence that he made a confession on the Monday as a result of assaults and torture was improbable.

3. The magistrate's testimony as to the appellant's physical and mental condition at the time when he made the confession was clearly preferable to the appellant's version; in particular, on the question of whether the appellant showed the magistrate injuries other than those which the latter recorded.

4. The assaults alleged to have been committed by Grobbelaar were improbable.

5. The allegations of assault on the part of the other accused were irrelevant.

14

6. It was "pure speculation" to consider why the

appellant should suddenly confess on the Monday, after having on the police version, refused to make any admissions despite questioning during the Thursday, Friday and the Monday.

7. The injuries reflected in the prison register do not
render it probable that he was assaulted.

The appellant did indeed make a poor showing in the witness box. It is clear however that when he was first cross-examined he was unable to hear properly because, so it was found by the district surgeon, he had an infection in the ear which affected his hearing. The trial court said that "We tried to make allowances for the accused's ailment" and I proceed on the assumption that even making due allowance for the ailment the appellant was a poor witness and that there are serious improbabilities in his version as to the sources of the information contained in the confession. See in this

15

regard however the decision of Kumleben AJA, as he then

was, in S v Hoosain 1987(3) SA 1 (AD) at 10 F-G.

There is a passage in the reasoning of the

court a quo that is, with respect, open to criticism.

This reads as follows:

"Nevertheless the essence of the accused's version is that he was assaulted on Monday by Capt Grobbelaar, W/O Maasdorp and Special Const Peterson and that he did not cooperate with the police. Despite his non-cooperation Capt Grobbelaar sent him off to the magistrate to make a statement under threat of further assaults. In other words, the alleged assaults of Thursday and Friday, if there were such assaults, were a relatively minor factor, if a factor at all, in the accused making the statement".

I do not follow this reasoning. If the first appellant

had indeed been assaulted on the Thursday and Friday I

see no improbability whatsoever in his making a

confession under the threat of further assaults on the

Monday.

Furthermore, I cannot, with respect, agree that

16 the first appellant was untruthful when he described what

he said to the magistrate about his injuries. Both

Warder Engelbrecht and the interpreter Zito said that the

injuries to the first appellant's arm were "fresh". This

is admittedly not a term of art and what one person may

mean by fresh does not necessarily coincide with what

another person means by that word. Nevertheless, the

position remains that there were fresh injuries on first

appellant at the time when he was admitted to prison on

the very day on which he made the confession and which he

says was the third day on which he was assaulted in order

to make him confess, and the police evidence wholly fails

to explain how these injuries were caused. (This despite

the fact that Grobbelaar accepted in cross-examination

that these injuries must have been sustained after the

first appellant was arrested).

With regard to the injuries on the first appellant the trial court said

17

"The only injury which may be said to have any bearing on the present matter is the injury recorded as being to the left hand and arm of the accused. This in our view can only relate to the chafe mark that Magistrate Fourie says that he saw and which appears to have been sufficiently minor that the District Surgeon did not even mention it in his report to the police." (My emphasis).

This reasoning, with respect, overlooks the fact that the

alleged report by the District Surgeon was not put in nor

did he testify. Furthermore, the first appellant alleged

that this District Surgeon had not examined him properly

and had slapped his face. Any report which the District

Surgeon may have made certainly cannot be taken into

account in the absence of any evidence from that person.

To sum up, there were in my view a number of objective facts and probabilities which supported the first appellant's allegation that he was assaulted and that this was the reason that he made the confession. Despite his poor showing as a witness I am satisfied that the trial court should have held that the onus had been

18

discharged and that the statement should have been

excluded.

It follows that the appeal of the first appellant must succeed.

I deal now with the second appellant's appeal.

The trial court found that:

(a) On the morning of 27 November 1990, that is to say a
few days before the murders, the second appellant
(and another person who was not identified) came to
the farmhouse of the deceased, ostensibly to enquire
if the deceased had any goats for sale.

(b) (i) On their own evidence the appellant and

Accused No 3 were on 1 December 1990, that is to say the day after the night during which the deceased were murdered, in possession of a black airways bag, a

19

combination TV-tape player, a submachine

gun, an automatic pistol and ammunition for these weapons, (ii) It was common cause that the bag and the fire-arms and ammunition were stolen from the deceased on the night of their murder; (iii) The explanation of the appellant and Accused No 3 that they had just found the bag and the other items in a culvert near the road was wholly improbable and in fact had been demonstrated to be untrue. (c) On Tuesday, 4 December 1990 they had handed to the State witness Sipho Jacobs for safekeeping the black airways bag containing the items referred to above and a brown linen bag containing various other items which, cm the overwhelming probabilities, had also been stolen from the deceased on the night when they were murdered.

20

(d) On 1 December 1990 a thumb-print of the second

appellant was found by Lance-Sgt Steenberg on a standing lamp in the passage of the farmhouse and that the second appellant had offered no explanation for the presence of this thumb-print consistent with his not having been in the farmhouse at the time when the murders and the robbery had been committed. (e) The second appellant was a party to a common purpose to rob the deceased and he foresaw the possibility that the deceased might be murdered in the execution of this purpose but nevertheless persisted, reckless of such fatal consequence.

Mr Redpath appeared Pro Deo for the second appellant at the trial and in this Court. He conducted both the trial and the appeal with care and ability and we are indebted to him for his assistance. With the exception of the explanation which the second appellant

21

had admittedly proffered for his possession of the

airways bag, fire-arms and ammunition, Mr Redpath attacked all these findings of the trial court.

The incident of 27 November 1990 when the second appellant was said to have come to the farmhouse enquiring if the deceased had goats for sale was testified to by Mirriam Homse, a domestic servant of the deceased. She also purported to identify a large number of the items that were, it is common cause, found in the wardrobe of Sipho Jacobs by the police on 6 December 1990, as having been the property of the deceased and as having been missing on the morning of 1 December 1990. The trial court found her to be an excellent witness and there is no valid reason to differ from this finding. It was submitted that her identification of the second appellant at an identification parade was suspect because he was the only bald man on the parade but it was not this feature which caused her to identify the second

22

appellant. Reference was also made to the fact that he

was the only man with a "crooked nose" on the parade but

it is difficult to see how this problem could have been

overcome. In the absence of any suggestion that she was

told to " identify" the man with a crooked nose, the

appellant must suffer the consequences of this

distinctive feature. In my judgment the trial court

rightly found that her identification was both truthful

and reliable. This is an important fact. The trial

court found that the inference to be drawn was that

either the second appellant

"went to spy out the lie of the land, as it were, on this occasion, or, more probably that, having been to the farm and seen the vulnerability of the two deceased, the idea of the robbery was then sown".

In all the circumstances I consider this to have been a

valid inference.

In addition to the articles referred to in (b)(i) and (ii) above, Mirriam Homse and Edward Krause,

23

the son-in-law of the deceased, also identified a number

of the articles that had been found in the wardrobe of Sipho Jacobs as being the property of the deceased. This evidence was attacked on the basis that however honest Homse and Krause were, they could not, in respect of a number of the items which they purported to identify as the property of the deceased, really say more than that they were similar to articles which were indeed the property of the deceased. In respect of a number of the articles which were in Sipho Jakob's wardrobe this is undoubtedly correct, but the coincidence that such similar articles should have been stolen from the deceased on the night when they were murdered and that they should be found together with articles which it is common cause were in fact stolen from the deceased on the night of the murders is too great to accept as a reasonable possibility. Criticisms were also made of the veracity of Sipho Jacobs but the fact that he was handed articles for safekeeping, although there is a dispute as

24 to what he was handed, is admitted by the second

appellant and in any event derives support from the

evidence of Nothini Gcuku and Nohleli Gcuku who were

called as State witnesses.

There is no doubt whatsoever that the trial court was correct in rejecting the explanation of the second appellant as to how he and Accused No 3 came to be in possession of the fire-arms, ammunition and airways bag that were stolen from the deceased on the night of the murders.

Both at the trial and in argument a wide-ranging attack was launched on the fingerprint evidence of Lance-Sgt Steenberg. A Mr Sherritt was called as an expert witness for the defence. The main criticisms of the evidence identifying the thumb-print lifted by Lance-Sgt Steenberg as that of the second appellant were based upon the following propositions:

25

(a) that the purely numerative approach adopted by

police fingerprint experts in South African Courts was unsound;

2. that even if the numerative approach were to be adopted, seven points of identity were now generally speaking internationally regarded as insufficient;

3. that whatever significance the points of similarity between the disputed fingerprint and the known genuine thumb-print there might be, this was cast in doubt because of the presence of a substantial number of dissimilarities;

(d) that the basis upon which the State witness sought
to explain the dissimilarities namely, the presence
of dirt etc either on the thumb of the suspect or on
the surface on which the print was found or movement
when the print was placed, could also account for
the similarities.

There is, on the face of it, some substance in

26

these criticisms but the trial court found firstly, that

while Sherritt was knowledgeable on the subject, he did not have the experience or training in the field of comparing questioned fingerprints with authentic fingerprints that a police expert such as Sgt Steenberg would have; secondly, that in cross-examination Sherritt had conceded that there were thirteen points of similarity between the questioned print and the undisputed print; and thirdly, that the dissimilarities were explicable on the basis given by Steenberg. It is however unnecessary to come to any firm conclusion on this matter because in my judgment, assuming that the thumb-print was not proved to have been that of the second appellant, the other factors found by the trial court establish that he was indeed present in the farmhouse and participated in the robbery on the night when the deceased were murdered.

On these facts second appellant was party to a

27 common purpose to rob. The trial court found, in effect,

that he foresaw and reconciled himself with the risk that

one of his associates might cause the death of someone in

the execution of the robbery. That is the effect of the

finding but I have framed it in the phraseology of

Nienaber JA in S v Majosi & Others 1991(2) SACR 532 (A)

at 537 c-d.

It was submitted that second appellant could

not be said to have foreseen the possibility of death

firstly, because there was no proof that he or any of his

associates was armed at the time he embarked on the

venture. The medical evidence establishes that in the

case of each of the deceased there was a transection of

the trachea - in layman's language a severing of the

windpipe. Dr Lang was of the view that this occurred in

each case at the end of the attack on each of the

deceased and would have caused them to die by

suffocation. Both the deceased had other injuries and in

28

particular Mr Booysen had fractures of the skull which Dr

Lang described in his written report as "axe wounds". In his evidence however he expressed the view that it was more probable that what he had described as "axe wounds" were caused by a tommy-bar or crowbar. This was a metal bar approximately 300 mm in length and 1,65 kg in weight. There is a photograph of it in the record and I would describe it as a crowbar. Dr Lang was firmly of the view that most of the injuries inflicted on Mrs Booysen could have been caused with this crowbar. The deceased themselves owned such a crowbar which was kept hanging behind the spareroom door in their farmhouse. It is clear on the evidence however that there was another crowbar in the house when Mirriam Homse arrived for work at 7 o'clock on the morning of 1 December and discovered that there had been a robbery. She said that the crowbar owned by the deceased was still hanging in its usual position behind the spareroom door when she arrived but that the other crowbar was lying on the diningroom table

29

when she arrived. This was removed by the police that

morning. There was blood on it when it was found by the

police, according to two police witnesses although

Mirriam Homse said that she did not notice any blood on
the crowbar.

There is of course no admissible evidence against Accused No 2 as to what weapons, if any, were used to attack the deceased. It is quite clear however that a blunt instrument was used to attack them. The evidence as a whole discloses that there were no signs of any forcible entry into the farmhouse itself and a palm-print of Accused No 3 was found on the window-sill of a bathroom positioned as if it were made by a person entering the bathroom from the outside. There is nothing to suggest that the crowbar was used to gain entry to the house and in the absence of any evidence to the contrary then the probabilities are overwhelming that the crowbar that did not belong to the deceased was brought into the

30

house either by the second appellant or one of his

associates on the night in question. No other weapon was found which could have caused the fatal throat injury to Mrs Booysen and I am satisfied that it was proved beyond reasonable doubt that the crowbar that did not belong to the deceased was used to assault and kill her and in all probability Mr Booysen. It was suggested in argument that even if the appellant or one of his associates took the crowbar into the house after gaining entry without having to break in, they may have taken it for the purpose of opening a safe or any interior doors that might have been locked as an additional security precaution, as opposed to taking it with the object of using it as an offensive weapon. There can be no doubt that the appellant knew from his visit a few days before that the farmhouse was occupied by the Booysens and, in the absence from any of the accused to the contrary, it is inconceivable that second appellant did not realise that the crowbar might have to be used either to

31

intimidate or subdue the occupants of the house and that

someone might be injured even fatally in the process. It is plain that after the deceased were murdered the robbery was executed and indeed the second appellant shared in the spoils of the robbery. The conduct of a man after the event may well serve as an indication of his state of mind at the time, see S v Petersen 1989(3) SA 420 (A) at 425 E-F, S v Goosen 1989(4) SA 1013 (A) at 1021 A-B and Majosi's case supra at 538 b-e.

It follows that the second appellant was rightly convicted of murder.

I deal now with the question of sentence. The second appellant was almost 23 years old when the offences were committed. He had three previous convictions of theft, one previous conviction in 1983 for housebreaking with intent to steal and theft, a conviction of rape in 1984 in respect of which he was

32

sentenced to a whipping and 6 years' imprisonment of

which 2 years was conditionally suspended for 5 years,

and thereafter a further conviction of theft and a

conviction of assault in respect of each of which he was

sentenced to further imprisonment. The trial court found

the following aggravating circumstances:

"(a) The murders were committed in the execution of a robbery committed solely for gain.

2. They were committed against a solitary couple well advanced in years (and to draw a comparison with another case, the deceased in the present case were virtually the same age as the couple who were killed in the case S v Khundulu & Ano 1991(1) SACR 470 (A)).

3. As in the Khundulu case, it was a savage attack upon the two deceased.

4. It is in our view also an aggravating factor that not only did the attack on the two deceased take place on a solitary couple but it took place in their bedroom and while they were in bed at night, when they would have been at their most vulnerable.

(e) The fifth aggravating factor, also found in the
Khundulu case, is appropriate to the present
case, and I quote it,

'Fifthly, there is the undeniable fact that murderous attacks of this kind on solitary couples living in isolated places are on the increase and the deterrent effect of the sentence to be imposed must, in the circumstances, loom large.'

(f) It is in our view an aggravating factor of the

33

case that the killings were morally indefensible. The deceased were killed in order to avert any interference in the robbery, and to borrow a sentence from the judgment in S v Dlamini 1991(1) SACR 128 (A) at 134 A,

'If it is morally indefensible to kill to

avoid the consequences of one's crime, it

must surely be equally indefensible to

kill to avert interference with its

commission.'

(g) There was an element of planning in the attack

in that the telephone wires were cut to prevent

any possible assistance being summoned, and in

the case of Accused No 4 we have found that he

went to the farm on 27 November 1990 and this

was either in order to ascertain the position

at the farmhouse or when the seed of

forethought preceding the robbery was sown and

the vulnerability of the two deceased

ascertained."

I agree that these are indeed aggravating

factors. The only mitigating factor is that the

particular form of intent proved was dolus eventualis.

There is abundant authority for the proposition that this

can be a mitigating factor. The degree of the risk of

death ensuing is a vital consideration in this regard.

If there was a likelihood of that risk being realised

then, in the circumstances of this case, I do not

34 consider that the absence of proof of personal

participation in the killing or of a direct intent to

kill would constitute a mitigating factor. There is not

the slightest indication here that any of the assailants

of the deceased ever intended merely to tie them up or

otherwise disable them without causing them serious

bodily harm. The medical evidence and the photographs

clearly indicate a savage attack from the outset. Here

again, what actually happened may serve as an indication

of the state of mind of an accused at an earlier stage.

It does not of course necessarily follow that in every

case where there has been an attack on a deceased person

which was in fact violent from the outset and no attempt

to use lesser means of overcoming resistance or

interference was used, the accused must have appreciated

that there was a high degree of risk of death occurring.

Here however, there is no evidence to suggest that there

was not such a degree of risk present to the mind of the

second appellant. Mr Booysen was a well—built man of

35

strong physique. The appellant saw him a few days before and must have appreciated that there was, at least, a substantial risk of his offering resistance to the robbery that would result in him being killed.

The absence of any mitigating factors does not necessarily mean that the death sentence is the only proper sentence. All the objects of punishment must be given due weight. In the particular circumstances of this case, however, and having regard to the aggravating circumstances already referred to, this is in my view such an extreme case that the deterrent and retributive aspects of punishment must play an important role and the death sentence is the only appropriate one.

In the result the appeal of the first appellant is upheld and his convictions and sentences in respect of all counts are set aside. The appeal of the second appellant fails.

A J MILNE

Judge of Appeal

HEFER JA ]

] CONCUR KUMLEBEN JA ]