Gilchrist v S (1153/2021) [2025] ZASCA 57 (12 May 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Supreme Court of Appeal South Africa: Supreme Court of Appeal You are here: SAFLII >> Databases >> South Africa: Supreme Court of Appeal >> 2025 >> [2025] ZASCA 57 | Noteup | LawCite sino index ## Gilchrist v S (1153/2021) [2025] ZASCA 57 (12 May 2025) Gilchrist v S (1153/2021) [2025] ZASCA 57 (12 May 2025) Download original files PDF format RTF format Links to summary PDF format RTF format make_database: source=/home/saflii//raw/ZASCA/Data/2025_57.html sino date 12 May 2025 THE SUPREME COURT OF APPEAL OF SOUTH AFRICA JUDGMENT Not Reportable Case No: 1153/2021 In the matter between: BRENDON STEPHEN GILCHRIST APPELLANT and THE STATE RESPONDENT Neutral citation: Gilchrist v The State (1153/2021) [2025] ZASCA 57 (12 May 2025) Coram: ZONDI AP, SCHIPPERS and HUGHES JJA, and PHATSHOANE and MODIBA AJJA Heard: 11 March 2025 Delivered: 12 May 2025 Summary: Criminal Law and Procedure – s 93 ter (1) of the Magistrates’ Court Act 32 of 1944 – appellant legally represented – record stating no assessors required – compliance with s 93 ter (1) – s 316(5) of the Criminal Procedure Act 51 of 1977 – leave to adduce new evidence on appeal – State witness recanting evidence – no reasonably acceptable explanation for not producing evidence at trial – appeal dismissed. ORDER On appeal from: Gauteng Division of the High Court, Johannesburg (Makhubele and Molefe JJ concurring, sitting as court of appeal ): 1. The appellant’s application for leave to adduce further evidence on appeal is refused. 2. The appeal is dismissed. JUDGMENT Phatshoane AJA (Zondi AP, Schippers and Hughes JJA and Modiba AJA concurring): Introduction [1] The appeal has its origin in the Magistrates’ Court for the Regional Division of Gauteng, Benoni (trial court), where Mr Brendon Stephen Gilchrist, the appellant, was arraigned on a count of murder and a count of possession of a firearm without a licence in contravention of the Firearms Control Act 60 of 2000 . The State alleged that he unlawfully and intentionally shot and killed Mr Thulani Khuzwayo (the deceased) on 26 January 2016 at Daveyton, Etwatwa. He pleaded not guilty and advanced an alibi defence. He claimed to have been at his home in Reiger Park during the fatal incident and nowhere near Etwatwa. [2] The trial court convicted the appellant on both counts on 28 March 2017 and sentenced him on 12 June 2017 to 20 years’ imprisonment for murder and five years’ imprisonment for the possession of the firearm. He sought and was granted leave by the trial court to appeal to the Gauteng Division of the High Court, Johannesburg (high court) against his conviction and sentence. The high court dismissed the appeal against conviction and reduced the  sentence of 25 years’ imprisonment to 20 years. The present appeal is with special leave of this Court against the appellant’s conviction only. [3] In this Court the appellant challenges the proceedings on the ground that the trial court failed to  explain the provisions of s 93 ter (1) of the Magistrates’ Court Act 32 of 1944 (MCA).The appellant contends that he was unable to make an informed decision on whether to waive his right to have assessors present for his trial. He further seeks an order to introduce new evidence in terms of s 316(5) of the Criminal Procedure Act 51 of 1977 (CPA) on the basis that Ms Lindiwe Motaung (Ms Motaung Jnr), a State witness, made a statement in which she recanted her previous evidence implicating the appellant in the commission of the offences. The appellant challenged the conviction firstly, on the basis that the trial court failed to apply the cautionary rule to the identification evidence and erroneously rejected his alibi defence. Secondly, it was argued, that the State failed to prove that the appellant was not the holder of a permit which entitled him to possess a firearm. In the notice of appeal the appellant takes issue with the failure by the State to call Mr Vasco Cloete to testify and contends that this called for an adverse inference to be drawn against the State. The facts [4] The appellant and Ms Motaung Jnr cohabited for a period of approximately 10 years and have two children, a boy and a girl aged 12 and 5 years respectively. The couple’s relationship was marked by violence. When Ms Motaung Jnr paid her grandparents a visit the appellant would accost her aggressively. She terminated the relationship two days prior to the incident in issue and moved out of their communal home in Reiger Park to live with her grandparents in Etwatwa. The two minor children remained with the appellant. On 26 January 2016, during the day, she met the appellant in Golden Walk, Germiston, a busy public space, to discuss the children’s living arrangements. Later that day the appellant phoned and attempted to dissuade her to go to work the next day, which she rebuffed. She arrived at her grandparental home around 19h30 that evening. [5] Around 21h00, whilst Ms Motaung Jnr was in the company of her grandparents, the appellant was let into the house after identifying himself. He held a firearm in his hand. The deceased asked him why he was armed. Without a response, the appellant lifted his gun-held hand and shot and killed Ms Motaung Jnr’s grandfather. The cause of death is recorded in the autopsy report as a ‘penetrating gunshot wound chest and abdomen’. [6] Ms Motaung Jnr testified that soon after the shooting she pushed the appellant out of the house. A skirmish ensued. A certain Jika, the appellant’s friend, intervened and asked him what he had done. The appellant handed him the firearm. The appellant proceeded to wrestle with Ms Motaung Jnr and strangled her. In the course of the fray Ms Matshidiso Motaung (Ms Motaung Snr), confronted the appellant. She asked him what he was doing. He fled the scene. Ms Motaung Jnr immediately called the appellant’s cousin, one Dina, and informed her of the tragic incident and further enquired whether the children were safe. [7] Ms Motaung Jnr further testified that the lighting in her grandparents’ house on the night in question consisted of two candles, one in the kitchen and the other in the bedroom. The appellant wore a grey cap with a pattern in front, a Pirates Soccer Club T-shirt, Soviet brand pants, and black and white sneakers, the same clothes he wore during the day when he met Ms Motaung Jnr. As she had been in a relationship with the appellant for over a decade, she said that she knows the way he speaks, and the way he walks even if he comes from a distance and can identify him. [8] Ms Motaung Snr materially corroborated her granddaughter’s evidence. She knew the appellant since 2005. At some stage he lived with the Motaungs. On that fateful night the appellant was dressed in a black T-shirt as described and wore a cap, which she later picked up and handed over to the police. She also enquired why he had a firearm. This was not met with a response. The appellant was two and a half metres away when he shot and killed the deceased. Following the shooting, Ms Motaung Snr momentarily blacked-out. When she came to, she went outside the house and found her granddaughter wrestling with the appellant on the ground. The appellant had pinned her granddaughter down.  She enquired from the appellant what he was doing. He fled. [9] The appellant’s version is diametrically opposed to that of the State. He alleged that he never had any issues with the deceased and denied that he shot him. He was nowhere near the deceased’s house in Etwatwa on that fateful day. On 26 January 2016 at 12h00 he had met Ms Motaung Jnr at her workplace in Germiston. They had an argument regarding the children’s custody but reached an agreement. At 18h00 he left his home at Reiger Park to purchase alcohol at his neighbour’s house and returned to check on his children who were with his friend, Mr Vasco Cloete. At 20h00 he took his children to his mother, who lived in the same street, three houses away. He was back at his house at 21h00. He confirmed that Ms Motaung Jnr called his cousin, Dina, and reported that he had shot her grandfather around 21h00. Thereafter his cousins searched for him and found him at his mother’s place and reported the shooting. He conceded that on that day he wore a Pirates Soccer Club T-shirt, blue Soviet brand pants and black shoes. He did not wear a cap and never wears them as he takes pride in his hairstyles. He admitted that Ms Motaung Jnr would never make any mistake regarding his identity because she knew him but maintained that she was falsely implicating him. [10] Ms Joyce Gilchrist, the appellant’s mother, is wheelchair bound. She was called to corroborate her son’s alibi. She testified that on 26 January 2016 from 20h30 to 21h00 the appellant was at her house. He left at 21h00 but came back at 21h30 because he constantly checked on her to ascertain if she needed water or use of a bathroom. He spent some time with her chatting, having coffee and watching television. He did not consume alcohol. Neither did he smell of liquor. Proceedings in the trial court [11] The trial court stated that the key issue was the identity of the perpetrator, which required the application of the cautionary rules. The court was of the view that the evidence regarding the identity of the appellant as the assailant, was correct. The  Motaungs and the deceased had an unimpeded view of the appellant when he entered their house. Except for the cap, it was common cause what clothes he wore. Although the visibility outside the house was poor, the assailant who entered the house had wrestled with Ms Motaung Jnr. She had ample opportunity to observe him when they wrestled as they faced each other. He throttled and pinned her down. She also recognised his voice because he instructed Jika to take the firearm. [12] The trial court found that the evidence of the State witnesses was reliable and was unpersuaded that they had any motive to falsely implicate the appellant. The trial court dismissed the appellant’s version, which it found was interspersed with discrepancies. He had created the impression that he had overindulged in the consumption of alcohol the whole afternoon and the night of 26 January 2016. However, his mother testified that the appellant had neither consumed nor smelled of alcohol on the day in question. The appellant stated that he did not wear caps but gave a contradictory account on how his cap came to be in possession of Ms Motaung Snr. The trial court accordingly rejected the appellant’s alibi defence as not reasonably possibly true. The court found him guilty on the count of murder and of unlawful possession of a firearm. Proceedings in the high court [13] The high court held that on the only material issue in dispute, the identity of the perpetrator, there was sufficient corroborating evidence. It therefore concluded that the trial court had correctly rejected the appellant’s alibi defence having carefully weighed the evidence and applied the cautionary rules. The high court held that the appellant’s evidence that the State witnesses had a motive to falsely implicate him was insupportable, as there had been direct evidence linking him to the commission of the offences. The contradictions in the State’s case regarding for instance, who would have spoken to the appellant first when he entered the Motaungs’ house, were immaterial. On these bases, the high court dismissed the appellant’s appeal against his conviction. Compliance with s 93 ter (1) of the MCA [14] Section 93 ter (1) of the MCA provides: 'The judicial officer presiding at any trial may, if he deems it expedient for the administration of justice (a) before any evidence has been led; or (b) in considering a community-based punishment in respect of any person who has been convicted of any offence, summon to his assistance any one or two persons who, in his opinion, may be of assistance at the trial of the case or in the determination of a proper sentence, as the case may be, to sit with him as assessor or assessors: Provided that if an accused is standing trial in the court of a regional division on a charge of murder, whether together with other charges or accused or not, the judicial officer shall at that trial be assisted by two assessors unless such an accused requests that the trial be proceeded with without assessors, whereupon the judicial officer may in his discretion summon one or two assessors to assist him.' [15] In S v Gayiya [1] ( Gayiya ) this Court explained the effect of s 93 ter (1) as follows: 'The section is peremptory. It ordains that the judicial officer presiding in a regional court before which an accused is charged with murder (as in this case) shall be assisted by two assessors at the trial, unless the accused requests that the trial proceed without assessors. It is only where the accused makes such a request that the judicial officer becomes clothed with a discretion either to summon one or two assessors to assist him or to sit without an assessor. The starting point, therefore, is for the regional magistrate to inform the accused, before the commencement of the trial, that it is a requirement of the law that he or she must be assisted by two assessors, unless he (the accused) requests that the trial proceed without assessors.' [16] The above dictum in Gayiya was reaffirmed by this Court in Director of Public Prosecutions, KwaZulu-Natal v Pillay [2] ( Pillay ) as a clear and unambiguous correct statement of the law. However, in Pillay this Court observed that numerous high court judgments have addressed s 93 ter (1) of the MCA and sought to apply Gayiya with the resultant conflict in the interpretation and application of the section. It therefore became necessary in Pillay to resolve the conflict. Pillay underscored that s 93 ter (1) does not confer upon an accused person the right to be tried by a ‘properly constituted’ court, but only a right to request that the trial proceeds without assessors. Once the request has been made, the magistrate retains a discretion to summon one or two assessors to assist the court, despite the request. The recitation of the concurring minority judgment in Pillay below is concise and sets out insightfully the legal position on the construction of s 93 ter (1): [3] ‘ The proviso is silent on the manner in which an accused must be informed of the court's composition; or whether a statement or confirmation by an accused's legal representative, that the trial may proceed without assessors, constitutes compliance with the proviso. Sensibly interpreted, however, as long as it appears from the record of the proceedings that an accused has been informed of the proviso — by the magistrate or the accused's legal representative — and that there is a formal request that the trial proceed without assessors, there will be compliance with the proviso. Whether there has been such compliance is a question of fact to be determined in light of the circumstances of the particular case. In the case of an accused who is legally represented, it is implicit in a statement or request to the magistrate that no assessors are required, that the accused has been informed of the proviso. This is because judicial officers “act on the assumption that a duly admitted lawyer is competent”, as stated by this Court in S v Halgryn [2002 (2) SACR 211 (SCA)]. Legal competence necessarily entails knowledge of the law and, in this case, the proviso. It can therefore be accepted that a legal representative would inform the accused of the proviso, explain its requirements, and that, when the representative informs the court that assessors are or are not required, the accused has understood what has been explained to him or her, unless, in the exceptional case, something emerges which suggests otherwise. … Counsel's authority over the suit, however, does not detract from the mandatory requirements of the proviso. But the proviso does not preclude a situation, for example, where the legal representative advises the accused that in his or her view, and in the interests of the accused, the trial should proceed without assessors. A court should not look behind a decision in a trial made by counsel in good faith and in the best interests of the client, save only to prevent a miscarriage of justice. If the accused accepts that advice, the legal representative would advise the court that assessors are not required, and there would be compliance with the proviso. And, in such a case, it cannot be suggested that “the accused never made a request [that the court] not sit with assessors”. Neither is it necessary for the record to reflect that the “legal representative explained the proviso to him” — that is a given.’ (Citations omitted). [17] The record shows that from 29 January 2016 up to the stage that the appellant was requested to plead to the charges on 29 August 2016 there were several remands for bail and further investigation. From 5 February 2016 the appellant was represented by Mr Mashitoa, who also assisted him with his bail application. Mr Mashitoa withdrew as the appellant’s legal representative on 2 June 2016 as he had not been placed in funds.  From 1 August 2016 Ms Clarence represented the appellant. However, prior to Ms Clarence’s engagement Ms Bhamjee had appeared for the appellant on 15 June 2016, before magistrate Cox, who also conducted the rest of the appellant’s trial. The magistrate’s handwritten notes of that date read as follows: ‘ Accused present. No Assessors required. Remanded to 01/08/2016 [for] trial. Accused bail extended + warned 08h30. (Mrs Bhamjee confirms).’ [18] The appellant’s counsel submitted that the trial court’s entry of ‘No Assessors required’ was insufficient compliance and not an indication that the appellant was appropriately informed that it was a requirement that the magistrate presiding must be assisted by two assessors unless the appellant requested otherwise. The legal principles adverted to above disposes of the initial question whether there had been adequate compliance with s 93 ter (1). The statutory compliance had never been an issue in the trial court or in the high court. It is raised for the first time in this appeal. This, the State took issue with and contended that it is being placed in a disadvantageous position. [19] An appeal court can deal with an issue that was not raised and not considered by the lower courts only in exceptional circumstances. A court will not entertain a novel issue on appeal where it causes prejudice or unfairness to the other party. [4] The judgment appealed against must be tested against issues which were placed before the court that granted it because an appeal corrects mistakes in the decision of that court. [5] What the above entry by the magistrate demonstrates is that the appellant’s legal representative in the trial court was alive to the requirement of the employment of assessors and had confirmed with the magistrate that the assessors were not required. The application to introduce new evidence in terms of s 316(5) of the CPA [20] The three well-settled substantive requirements for reopening a case after a criminal conviction are: (a) there must be an adequate explanation for the delay; (b) the evidence must be probably true and reliable; and (c) if admitted, the evidence must lead to a substantive reversal of the outcome of the case. [6] [21] The State filed a statement on appeal by the investigating officer, W/O Peter Mathebula, to the effect that Ms Motaung Snr passed away. On the death certificate, attached to the statement, it appears that she died on 1 June 2019 due to natural causes. I am of the view that this evidence is admissible and relevant to the consideration of the appellant’s leave to introduce new evidence. In the affidavit the appellant deposed to on 12 November 2021 in terms of s 316(5) of the CPA, he stated that Ms Motaung Jnr paid him a visit in prison and confessed that she had given false evidence against him in the trial court. She recanted the evidence that the appellant had committed the offences for which he was convicted and sentenced. [22] In her recanting statement Ms Motaung Jnr stated that her grandmother had forced her to give a statement to the police that she had witnessed the appellant shoot the deceased, which was untrue. She also stated that she had committed perjury which led to the appellant’s conviction and sentence. She said that her grandmother used her ‘raw emotions over the recent break-up between [herself] and Mr Gilchrist as a tool to get [her] to agree to the terrible act of sending an innocent man [to] prison’. She further stated that her evidence in the trial court was manufactured by her grandmother as an act of revenge against the appellant and she went along with that plot. [23] Around April 2018, approximately ten months after his trial, Ms Motaung Jnr informed the appellant that her evidence at the trial was untrue. What is crucial is a consideration of whether the evidence would probably be true, reliable and lead to a substantive reversal of the conviction. The appellant solely relies on the recantation affidavit. On this score Smalberger JA in S v H [7] quoted the following seminal passages by Centlivres CJ in R v Van Heerden and Another [8] : ‘“ I can see no reason why the Court should accept at their face value affidavits made by persons who allege therein that they gave perjured evidence at the trial.” [Centlivres CJ] went on to add (at 372H-373A): “ It is not in the interests of the proper administration of justice that further evidence should be allowed on appeal or that there should be a re-trial for the purpose of hearing that further evidence, when the only further evidence is that contained in affidavits made after trial and conviction by persons who have recanted the evidence they gave at the trial. To allow such further evidence would encourage unscrupulous persons to exert by means of threats, bribery or otherwise undue pressure on witnesses to recant their evidence. In a matter such as this the Court must be extremely careful not to do anything which may lead to serious abuses in the administration of justice.” Centlivres CJ quoted with approval from a judgment of Denning LJ in Ladd v Marshall [1954] 3 All ER 745 at 748 to the effect that: “ A confessed liar cannot usually be accepted as credible. To justify the reception of the fresh evidence, some good reason must be shown why a lie was told in the first instance, and good ground given for thinking the witness will tell the truth on the second occasion.”’ [24] What must be considered where the evidence sought to be introduced is only a recantation affidavit, is ‘some credible evidence aliunde which suggests that the evidence originally given was false’. [9] In this case there is no other independent evidence apart from Ms Motaung Jnr’s affidavit whose veracity is incapable of being verified because Ms Motaung Snr, who is posthumously maligned, cannot rebut the allegations in the recanting affidavit. [25] In my view, it is questionable that the evidence contained in the affidavit is truthful. Ms Motaung Jnr’s evidence concerning the shooting, was detailed and corroborated in material respects by her grandmother. There was no doubt in her mind that the appellant had shot her grandfather. She said that he had worn the same clothes which he wore when he met her earlier that afternoon. She described this clothing in detail, as well as her struggle with the appellant outside the house after he had shot the deceased. Their discussion about the children at the meeting earlier that day, is common cause. She knew Jika to whom the appellant handed the gun and said that he often visited them when she was living with the appellant. She immediately called the family out of concern for the children’s safety. All of this was no made-up story. [26] It is probable that Ms Motaung Jnr may have made the statement for an ulterior motive. After all, the appellant is the father of her children. What weighs heavily against the probity of the statement is that Ms Motaung Jnr responded with alacrity following the shooting. She immediately, at approximately 21h00, called the appellant’s family to report that he committed the offences. The sudden reaction by Ms Motaung Jnr and her fear for her children’s safety shows that she had no time to hatch a plot with her grandmother to falsely implicate the appellant. In any event, Ms Motaung Jnr could never have feared for her children’s safety if the scheme was only directed at incriminating the appellant. In addition, Ms Motaung Jnr also accompanied the police to the appellant’s house shortly after the murder. [27] It is not in the interests of the administration of justice that issues of fact, once judicially investigated and pronounced upon, should lightly be reopened. [10] That said, there is no reasonable possibility of Ms Motaung Jnr’s affidavit being the truth. It follows that the appellant’s application to lead fresh evidence on appeal must fail. The merits of the appeal [28] In this Court the appellant questioned the reliability of the State witnesses’ identification. He contended that the State’s witnesses’ observation was of a limited duration and the visibility was poor as one candlelight provided insufficient illumination in the room. As shown above, the trial court carefully addressed the point. It would be superfluous to regurgitate the issue. Sight should also not be lost of the fact that, as is apparent from the judgment of the high court, counsel for the appellant had conceded, correctly in my view, that the witnesses had properly identified him. The record shows that on his own version, Ms Motaung Jnr had correctly identified him as the shooter: ‘ You and Malindi [Ms Motaung Jnr] have been in a relationship for quite some time now?....Yes Basically, she cannot make a mistake regarding your identification?...No Even if it is during the night[indistinct]….I think so.’ [29] Where the trial court does not misdirect itself on the facts or the law in relation to the application of a cautionary rule but demonstrably subjects the evidence to careful scrutiny, as the trial court did in this case, a court of appeal will not readily depart from its conclusions. [11] The high court correctly found that the trial court, in a carefully considered judgment, could not be faulted for having concluded that the appellant was positively identified as the assailant. [30] The appellant persists in the appeal with his alibi defence and contends that the trial court’s evaluation of his evidence lacked detailed scrutiny. An insuperable stumbling block to his alibi defence and his allegation of being falsely implicated, as I have already discussed, is that Ms Motaung Jnr’s actions following the murder did not evince those of a person who conspired to falsely incriminate him. [31] The evidence shows that the appellant’s alibi was a complete fabrication, which the trial court justifiably rejected. The effect of a false alibi is that the trial court should treat the accused's evidence as if they had never testified. See S v Shabalala [12] where it was held: 'It was proved beyond any reasonable doubt that the appellant's alibi was false. The effect of the falseness of an alibi on an accused's case is to place him in a position as if he had never testified at all.' [32] Regarding count 2, it was argued that the State did not prove the elements of the offence as it at no stage presented evidence that the appellant was not the holder of a permit or a licence that authorised him to possess a firearm. However, counsel for the appellant conceded in his heads of argument that this aspect was never raised in the application for leave to appeal before us. Additionally, it does not appear that this was raised in the high court. The witnesses observed him holding a firearm. He shot the deceased. Nothing prevented the appellant from producing a firearm licence, permit or authorisation if he had one. Regard being had to the evidence as a whole, the trial court correctly convicted him on count 2. [33] Lastly, the appellant took issue with the failure by the State to call Mr Vasco Cloete and contended that this called for a negative inference to be drawn. It is within the discretion of the prosecutor to decide which witnesses to call as part of the State case. The duty of the prosecutor, 'to see that all available legal proof of the facts is presented', is discharged by making the evidence (and not only the witnesses subpoenaed by the State) available to the accused's legal representatives. [13] The State made Mr Cloete available to the defence. After the close of the State’s case the defence indicated their intention to call Mr Cloete as a defence witness but for reasons unknown, he was not called. I fail to see how a negative inference can be drawn against the State. Nothing turns on this aspect. On the aforegoing exposition, no cogent criticism can be sustained on the high court’s dismissal of the appeal against the conviction on both counts. [34] The following order is therefore made: 1. The appellant’s application for leave to adduce further evidence on appeal is refused. 2. The appeal is dismissed. M V PHATSHOANE ACTING JUDGE OF APPEAL Appearances: For appellant: F Van As Instructed by: Pretoria Justice Centre C/o Bloemfontein Justice Centre For respondent: G J C Maritz Instructed by: National Director of Public Prosecutions, Pretoria C/o National Director of Public Prosecutions, Bloemfontein. [1] S v Gayiya [2016] ZASCA 65 ; 2016 (2) SACR 165 (SCA) para 8. [2] Director of Public Prosecutions, KwaZulu-Natal v Pillay [2023] ZASCA 105 ; 2023 (2) SACR 254 (SCA); [2023] 3 All SA 613 (SCA) para 10. [3] Ibid paras 57-60. [4] DB v CB [2024] ZACC 9 ; 2024 (5) SA 335 (CC); 2024 (8) BCLR 1080 (CC) para 49. [5] Tiekiedraai Eiendomme (Pty) Ltd v Shell South Africa Marketing (Pty) Ltd [2019] ZACC 14 ; 2019 JDR 0719; 2019 (7) BCLR 850 (CC) para 31. [6] S v Marais [2010] ZACC 16 ; 2010 (2) SACR 606 (CC); 2011 (1) SA 502 (CC); 2010 (12) BCLR 1223 (CC) para 21. [7] S v H 1998 (1) SACR 260 (SCA) at 264F-264J. [8] R v Van Heerden and Another 1956 (1) SA 366 (A) at 372B. [9] S v H at 264J. [10] S v Liesching and Others [2016] ZACC 41 ; 2017 (2) SACR 193 (CC); 2017 (4) BCLR 454 para 50 . [11] S v Leve [2009] ZAECGHC 61; 2011 (1) SACR 87 (ECG) at 90H. [12] S v Shabalala 1986 (4) SA 734 (A) at 736C-736D. [13] S v Van der Westhuizen [2011] ZASCA 36 ; 2011 (2) SACR 26 (SCA) para 13 , quoting the words of Rand J of the Supreme Court of Canada in Boucher v The Queen [1955] SCR 16 . sino noindex make_database footer start