THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case no:  403/2000
REPORTABLE

In the matter between:

LEVACK, Hamilton Caesar

First appellant
LEBOLA, Lincoln

Second appellant
HENDRICKS, Mervyn

Third appellant
LE ROUX, Frederick William

Fourth appellant

and

REGIONAL MAGISTRATE,
WYNBERG

First respondent
DIRECTOR, PUBLIC PROSECUTIONS,
WESTERN CAPE

Second Respondent

Before:
Harms JA, Scott JA, Farlam JA, Cameron JA, and
Jones AJA
Heard:

Friday 1 November 2002
Judgment:
Thursday 28 November 2002

Criminal Procedure Act 51 of 1977 s 37 – Order that accused or
arrested persons supply voice samples is competent

JUDGMENT

_______________________________________________________

CAMERON JA:

[1] The Criminal Procedure Act 51 of 1977 gives wide powers to
police, doctors and courts to ascertain the bodily features of
arrested or accused persons.  At issue in the appeal is s 37.  This
empowers police and other officials, and courts before which
criminal proceedings are pending, to take steps, or to order that
steps be taken ‘to ascertain whether the body’ of an arrested or
accused person ‘has any mark, characteristic or distinguishing
feature or shows any condition or appearance’.1  The main
question is whether this provision covers the human voice.

1 Section 37 provides:
Powers in respect of prints and bodily appearance of accused
(1) Any police official may –
(a) take the finger-prints, palm-prints or foot-prints or may cause any such prints to be taken-
(i)
of any person arrested upon any charge;
(ii)
of any such person released on bail or on warning under section 72;
(iii)
of any person arrested in respect of any matter referred to in paragraph (n), (o) or (p) of
section 40 (1);
(iv)
of any person upon whom a summons has been served in respect of any offence referred
to in Schedule 1 or any offence with reference to which the suspension, cancellation or
endorsement of any licence or permit or the disqualification in respect of any licence or permit is
permissible or prescribed; or
(v)
of any person convicted by a court or deemed under section 57 (6) to have been
convicted in respect of any offence which the Minister has by notice in the Gazette declared to be
an offence for the purposes of this subparagraph;
(b) make a person referred to in paragraph (a) (i) or (ii) available or cause such person to be
made available for identification in such condition, position or apparel as the police official may
determine;
(c) take such steps as he may deem necessary in order to ascertain whether the body of any
person referred to in paragraph (a) (i) or (ii) has any mark, characteristic or distinguishing feature
or shows any condition or appearance: Provided that no police official shall take any blood
sample of the person concerned nor shall a police official make any examination of the body of
the person concerned where that person is a female and the police official concerned is not a
female.

[2] In November 1997 five accused were charged with dagga-related
offences in the Wynberg (Cape) Regional Court.  They were not
asked – and have still not been asked – to plead.  This is because
at the end of March 1998 the Magistrate granted an order under s
37(3) that the accused in the presence of their legal
representatives give the State voice samples as specified by a
named ‘voice expert’.  The object was to compare the samples
with tape recordings of telephone conversations in the State’s
possession, for possible later use during the trial.  The five then

(d) take a photograph or may cause a photograph to be taken of a person referred to in
paragraph (a) (i) or (ii).
(2) (a) Any medical officer of any prison or any district surgeon or, if requested thereto by any
police official, any registered medical practitioner or registered nurse may take such steps,
including the taking of a blood sample, as may be deemed necessary in order to ascertain
whether the body of any person referred to in paragraph (a) (i) or (ii) of subsection (1) has any
mark, characteristic or distinguishing feature or shows any condition or appearance.
(b) If any registered medical practitioner attached to any hospital is on reasonable grounds of the
opinion that the contents of the blood of any person admitted to such hospital for medical
attention or treatment may be relevant at any later criminal proceedings, such medical practitioner
may take a blood sample of such person or cause such sample to be taken.
(3) Any court before which criminal proceedings are pending may-
(a) in any case in which a police official is not empowered under subsection (1) to take finger-
prints, palm-prints or foot-prints or to take steps in order to ascertain whether the body of any
person has any mark, characteristic or distinguishing feature or shows any condition or
appearance, order that such prints be taken of any accused at such proceedings or that the
steps, including the taking of a blood sample, be taken which such court may deem necessary in
order to ascertain whether the body of any accused at such proceedings has any mark,
characteristic or distinguishing feature or shows any condition or appearance;
(b) order that the steps, including the taking of a blood sample, be taken which such court may
deem necessary in order to ascertain the state of health of any accused at such proceedings.
(4) Any court which has convicted any person of any offence or which has concluded a
preparatory examination against any person on any charge, or any magistrate, may order that the
finger-prints, palm-prints or foot-prints, or a photograph, of the person concerned be taken.
(5) Finger-prints, palm-prints or foot-prints, photographs and the record of steps taken under this
section shall be destroyed if the person concerned is found not guilty at his trial or if his conviction
is set aside by a superior court or if he is discharged at a preparatory examination or if no criminal
proceedings with reference to which such prints or photographs were taken or such record was

challenged the order in the Cape High Court.  Davis J (Hlophe
DJP concurring) dismissed their review application in June 1999,2
and later refused leave to appeal.  This Court granted the
necessary leave in October 1999.
[3] One of the accused died in July 2000.  Two of the others (Messrs
Levack and Sebola) are no longer traceable at their home
addresses and have dropped out of the proceedings. Their
appeals must be dismissed for want of prosecution.  The two
remaining, Messrs Hendricks and le Roux, persist in the appeal,
in which the presiding Magistrate is the first respondent.  He did
not oppose the proceedings and abides the Court’s decision.  The
second respondent, the Western Cape Director of Public
Prosecutions, opposed the application and resists the appeal.

CONDONATION

[4] The first issue is the appalling delay that has occurred.  The
Magistrate granted the order four and a half years ago.  This

made are instituted against the person concerned in any court or if the prosecution declines to

Court granted leave to appeal more than three years ago.  The
record was lodged in the Cape High Court in April 2000 – more
than two and a half years ago.  Thereafter both the notice of
appeal and the appeal record were filed late in this Court.  Later
also the appellants’ heads of argument were filed late.  The
appellants seek to have these lapses condoned.  Delays of this
kind reflect poorly on everyone involved, and bring discredit to the
criminal justice system.  The lapses here, which cumulated, are
egregious.  What is more, the explanation tendered – that the
attorney was ignorant of the rules for civil appeals because he
‘specialises in and deals almost exclusively with criminal matters’
– is by the avowal of the appellants’ own counsel completely
unacceptable.
[5] Whether condonation should be granted is therefore open to
serious question, and the fate of the application must in these
circumstances depend on the merits of the appeal itself.  These it
is desirable for us to address because, we were told, uncertainty
in the lower courts pre-dated the decision in the Court below, and
regional magistrates took conflicting approaches to whether such

prosecute such person.

orders can be granted.  The appeal therefore requires disposal on
the main point in issue.
[6] Before I turn to this, there is a further troubling point.  The
appellants’ neglect persisted without intervention from the office of
either the Registrar in the Cape High Court or the Western Cape
Director of Public Prosecutions (DPP).  In S v Joshua3 this Court
recently had occasion to deplore a similar (though much longer)
lapse where an appeal, also from the Cape High Court, lay in
limbo for years with the appellant out on bail.  Appellants in such
circumstances may have little incentive to bring appeals to
finalisation.  Close monitoring is therefore essential, and
responsibility for it must rest on the DPP.  In this case, we await a
report the DPP’s representative promised on steps to ensure that
future appeals will not disappear from view in this way.

GROUNDS OF REVIEW
[7] The grounds of review the appellants relied on in their founding
papers were that –
(a) the voice samples the State required did not fall within s 37;

2 Reported: 1999 (4) SA 747 (C), 1999 (2) SACR 151 (C).

(b) an order that voice samples be provided under compulsion
would effectively breach the appellants’ privilege against self-
incrimination and result in an unfair trial; and
(c) the Magistrate had no power to grant the order under s
37(1)(c), nor had the State laid a basis for bringing the
application within s 37(3)(a).
I consider these grounds in turn.

(A)
IS THE VOICE A ‘CHARACTERISTIC OR DISTINGUISHING
FEATURE’ OF THE BODY?

[8] Basic definition is always a good starting point in the search for
statutory meaning.  In the present case it provides a conclusive
solution.  The Concise Oxford Dictionary defines ‘voice’ as ‘1.
Sound formed in larynx etc and uttered by mouth, especially
human utterance in speaking, shouting, singing, etc. 2. Use of
voice, utterance. 3. (Phonetic) Sound uttered with resonance of
vocal chords, not with mere breath.’  The voice is thus a sound

3 S v Joshua 2002 (2) SACR *** (SCA) [ABOUT TO BE REPORTED] para 55 per Mpati JA.

formed in the larynx and uttered by the mouth.  It emanates from
and is formed by the body.  There can therefore be no doubt that
it is a ‘characteristic’ (in the sense of a distinctive trait or quality) of
the human body.
[9] That each human voice is distinctive (although by no means
always capable of assured discernment)4 is also clear.  The voice
is therefore also a ‘distinguishing feature’ of the body.  The
conclusion that the voice falls within the scope of s 37 must follow.
[10] Davis J thus rightly held that a voice ‘represents a defining
characteristic of a human being’.5  As he also pointed out, this
conclusion accords with both South African and United States
authority.  In S v M6 Bresler J thought it ‘perfectly plain’ that a
voice ‘cannot fail but to be included within this category of “a
mark, characteristic or distinguishing feature”’.  The Supreme
Court of the United States has for decades regarded the voice of
an accused as ‘an identifying physical characteristic’.7  The
contrary view, Davis J rightly observed, is clearly untenable.8

4 Difficulties in organising reliable ‘voice identification parades’ are alluded to in R v Gericke 1941
CPD 211 214 and in R v M 1963 (3) SA 183 (T) 184F-H.  In R v Galiswe 1925 GWL 23 the trial
court excluded evidence of a voice identification procedure because the accused was not warned
or told why he was being questioned.
5 1999 (4) SA 747 (C) 752C, 1999 (2) SACR 151 (C) 155g-h.
6 1963 (3) SA 183 (T) 184E-F.
7 US v Wade 388 US 218 (1967) 222-223 (Brennan J for the Court); Gilbert v California 388 US

[11] However Davis J considered that this result could be achieved
only by applying a purposive approach to s 37.  By this he meant
that the provision’s wording is ambiguous, and that to reach the
conclusion that ‘voice’ is covered, it is necessary to go beyond its
perceived verbal signification.  I disagree.  In my view the literal
meaning of ‘characteristic or distinguishing feature’ amply covers
the human voice.
[12] The decision of this Court in Ex parte Minister of Justice: in re R
v Matemba,9 which Davis J considered an early example of
purposive statutory interpretation, was I think more modest in its
purport.  The question was whether a palm print was a ‘mark,
characteristic or distinguishing feature’.  Because the then
applicable provision10 expressly mentioned finger and footprints, it
was argued that palm prints were excluded.  Watermeyer JA (De
Wet CJ, Tindall JA, Centlivres JA and Feetham JA concurring),
affirming the majority decision (to which he was himself party) in R

263 (1967) 266-267 (Brennan J for the Court); US v Dionisio 410 US 1 (1973) (a voice has
‘physical properties’, which can be measured) (Stewart J for the Court).
8 1999 (4) SA 747 (C) 753B, 1999 (2) SACR 151 (C) 156f.
9 1941 AD 75.
10 Criminal and Magistrates’ Courts Procedure (Amendment) Act 39 of 1926, s 2.

v Brown,11 held that the general words obviously encompassed
palm prints.  He said:
‘It is quite possible that the Legislature did not have the markings on a
palm particularly in mind when they used the words “mark, characteristic
or distinguishing feature” possibly because it may not have been generally
known at the time the Act was passed that the marks on the palm of a
hand are distinguishing features.  But in my judgment it was for the very
reason that there may exist innumerable kinds of marks, characteristics
and distinguishing features which cannot be set out in detail that generic
words were used wide enough to embrace all.  In a similar way no attempt
was made to specify in detail the exact acts which the police may perform
in order to ascertain whether or not the body of an accused person bears
a mark, characteristic or distinguishing feature, because an incomplete
enumeration of such acts might handicap the police in the performance of
their duty.  Inspection of the body may reveal distinguishing marks of one
kind, but other distinguishing marks may require for their revelation one or
other of the resources of science such as microscopic or chemical
examination, photography, X-ray photography, prints, etc.’12

[13] Exactly the same applies here.  The section does not expressly
mention the voice.  But this is because it is one of ‘innumerable’
bodily features that the wording expressly contemplates.  It is true
that the voice, unlike palm or other prints, is not itself part of the
body.  It is a sound.  But the sound is a bodily emanation.  And
the body from which it emanates determines its timbre, volume
and distinctive modulations.  Nothing in the provision suggests
that the ‘distinguishing features’ it envisages should be limited to
those capable of apprehension through the senses of touch and
sight (or even taste or smell).

11 1935 CPD 286.

[14] Hearing is as much a mode of physical apprehension as feeling
or seeing.  For the sight-impaired it is indeed the most important
means of distinguishing between people.  It would therefore be
counter-literal to interpret the section as though the ways of
‘ascertaining’ bodily features it contemplates extend only to what
is visible or tangible.

(B)
SELF-INCRIMINATION AND THE APPELLANTS’ FAIR TRIAL
RIGHTS

[15] Appellants’ counsel contended that s 37 deviated from the
common law principle, now enshrined in the Constitution,13 that an
accused was entitled to be ‘passive’ in criminal proceedings.  He
developed this argument (as the second ground of review

12 1941 AD 75 79-80.  That the conclusion is ‘obvious’ is stated at page 80.
13 The Bill of Rights provides that everyone who is arrested for allegedly committing an offence
has the right to remain silent and not to be compelled to make any confession or admission that
could be used in evidence against that person (s 35 (1)(a) and (c)), and that every accused
person has a right to a fair trial, which includes the right ‘to be presumed innocent, to remain
silent, and not to testify during the proceedings’ and not to be compelled to give self-incriminating
evidence (s 35(3)(h)); considered in S v Zuma and others 1995 (2) SA 642 (CC) paras 29-32
(Kentridge AJ) and Ferreira v Levin NO and others 1996 (1) SA 984 (CC) paras 23 and 91-100.
Steenkamp and Nugent in Cheadle, Davis and Haysom South African Constitutional Law: The Bill
of Rights (2002) chapter 29 p 680 observe that ‘It is difficult to see what is added by the express
right not to be compelled to make a confession or an admission, for the right to remain silent, and
the right not to testify have, in any event, the effect of prohibiting compulsion to make confessions

portends) by contending that the order granted violated the
‘notions of basic fairness and justice’14 the Constitution now
requires of our criminal proceedings and that it would thus
inevitably result in an unfair trial.
[16] The argument involves a muddle with two fallacies.  But in one
form or another it has proved tenacious.  Hence it is necessary
first to point out the muddle and then to repel the fallacies.  This
Court has previously dealt authoritatively with the muddle.  In
Matemba,15 Watermeyer JA drew attention to a trial judge’s
misformulation of issues arising from the non-voluntary taking of
an accused’s palm print.  He said:
‘That statement appears to lay down two separate and distinct
propositions –
(a) that in the absence of statutory provision an accused person cannot be
compelled to furnish evidence against himself;
(b) that evidence obtained under compulsion cannot be used against an
accused person.
The terms in which those propositions are stated tend to obscure the real
issues which are involved, and I do not think that either of them can be
accepted as accurate expositions of the law.  The legality of the methods
used to obtain the palm print is one matter; the use of the palm print as
evidence is another, and these two questions must be kept separate and
not combined with one another, as is done when it is said that an accused
person cannot be compelled to furnish evidence against himself.’16
(Emphasis added.)

or admissions.’
14 S v Zuma and others 1995 (2) SA 642 (CC) para 16.
15 1941 AD 75.
16 1941 AD 75 77-78.

[17] Applying the same approach to the present argument, the first
fallacy is that evidence derived from an accused’s physique
violates the right against self-incrimination.  Differently put, it is
wrong to suppose that requiring the appellants to submit voice
samples infringes their right either to remain silent in the court
proceedings against them or not to give self-incriminating
evidence.  In R v Camane and others,17 Innes CJ analysed and
exposed the same fallacy a decade and a half before Matemba:
‘Now it is an established principle of our law that no one can be compelled
to give evidence incriminating himself.  He cannot be forced to do that
either before the trial, or during the trial.  The principle comes to us
through the English law, and its roots go far back in history.  Wigmore, in
his book on Evidence (vol IV, section 2250)18 traces very accurately the
genesis, and indicates the limits of the privilege.  And he shows that,
however important the doctrine may be, it is necessary to confine it within
its proper limits.  What the rule forbids is compelling a man to give
evidence which incriminates himself.  “It is not merely compulsion” says
Wigmore (section 2263)19 “that is the kernel of the privilege, but
testimonial compulsion.”  It is important to bear this in mind, because a
man may be compelled, when in Court, to do what he would rather not.
His features may be of importance, and he may be made to show them;
his complexion, his stature, mutilations, or marks on his body, may be
relevant points, and he may be compelled to show them to the Court.
That is what Wigmore calls autoptic evidence (vol II, section 1150)20 which
is perceived by the Court itself, and which it has a right to see.  In such
cases the man is really passive.  But he cannot be forced to go further and
to give evidence against himself.’21

17 1925 AD 570.
18 See now Wigmore on Evidence, McNaughton Revision (1961) vol 8 para 2250.
19 See now Wigmore on Evidence, McNaughton Revision (1961) vol 8 para 2263.
20 See now Wigmore on Evidence, revised by Chadbourn (1972) vol 4 para 1150.
21 Cited with approval in S v Zuma and others 1995 (2) SA 642 (CC) para 31 and in Ferreira v
Levin NO and others 1996 (1) SA 984 (CC) paras 23 and 96.

[18] Despite the clarity of Innes CJ’s pronouncement, the fallacy has
endured.  Fifteen years later, Watermeyer JA had to rebut it
again, at length, in Matemba.22  He concluded:
‘Now, where a palm print is being taken from an accused person he is, as
pointed out by Innes CJ in Rex v Camane (1925 AD at p 575), entirely
passive.  He is not being compelled to give evidence or to confess, any
more than he is being compelled to give evidence or confess when his
photograph is being taken or when he is put upon an identification parade
or when he is made to show a scar in Court.  In my judgment, therefore,
neither the maxim nemo tenetur se ipsum prodere nor the confession rule
make inadmissible palm prints compulsorily taken.’

[19] Notwithstanding the authority of these expositions, the task of
explaining that ‘autoptic evidence’ – evidence derived from the
accused’s own bodily features – does not infringe the right to
silence nor the right not to be compelled to give evidence has
continued to fall upon judges.23  The explanations given in these
cases apply in all details to the human voice.24  It falls within the
same category as complexion, stature, mutilations, marks and
prints.
[20] It is of course true that to take a palm- or fingerprint, or to draw
blood from an accused, or to require him to supply a voice

22 1941 AD 75 80-83.
23 Nkosi v Barlow NO en andere 1984 (3) SA 148 (T) 151-152 (Spoelstra J, Eloff J concurring); S
v Binta 1993 (2) SACR 553 (C) 562d-e (Ackermann J, Conradie J concurring); S v Huma and
Another 1996 (1) SA 232 (W) 237-240, 1995 (2) SACR 411 (W) 417-419 (Claassen J); S v
Maphumulo 1996 (2) SACR 84 (N) 87-90 (Combrink J).
24 This is also the position in the United States of America (US v Wade 388 US 218 (1967);
Gilbert v California 388 US 263 (1967); US v Dionisio 410 US 1 (1973)).

sample, goes further than merely observing his features or
complexion when he appears in court.  Our legal system
recognises the distinction.  It is for this reason that Ackermann J
held in S v Binta25 that a person who refuses a request to submit
to the taking of a blood sample under s 37 cannot, by the mere
refusal, be guilty of obstructing the course of justice or of
attempting to defeat the ends of justice.  The additional means of
compulsion that the provision licenses may have to be employed.
In the present case, it was no doubt awareness of Binta that
induced the DPP to seek the order.  Eventual defiance of it would
found a charge of contempt of court.
[21] Despite this added feature, there is no difference in principle
between the visibly discernible physical traits and features of an
accused and those that under law can be extracted from him
through syringe and vial or through the compelled provision of a
voice sample.  In neither case is the accused required to provide
evidence of a testimonial or communicative nature,26 and in
neither case is any constitutional right violated.

25 1993 (2) SACR 553 (C) (Conradie J concurring).
26 The Corpus Juris Juris Secundum vol 22A para 652 puts it thus: ‘The privilege against self-
incrimination is not violated by compelled participation in identification procedures, and the
compelled display of identifiable physical characteristics infringes no interest protected by such

[22] The second fallacy in the argument is this.  It is wrong to
suggest that the order intrinsically violates the appellants’ fair trial
rights.  At present the only question before us is whether an order
requiring an accused to supply in the presence of defence lawyers
voice samples indicated by a State-designated ‘expert’ is
competent.  Those samples have not yet been procured.  The
‘expert’s’ report has not yet been prepared.  Its value and the
weight that should properly be accorded it have not arisen for
determination.
[23] All these are issues for determination at the trial, which has not
even begun.  Once the appellants have pleaded, the trial court will
be vigilant to ensure observance of their rights.  This will demand
scrutiny not only of the methods and procedures applied in
procuring the voice samples, but of the quality, reliability and
value of the expert evidence about them.  The argument that an
incipient and inevitable breach of fair trial rights has occurred is
therefore untenable.

privilege, since … the privilege against self-incrimination protects only against evidence of

(C)
THE INTER-RELATION BETWEEN S 37(1) AND S 37(3)

[24] The review grounds suggested also that the Magistrate had no
power to grant the order under s 37(1)(c), and that the State had
laid no basis for bringing the application within s 37(3)(a).  This
attack, too, is misconceived.  The Magistrate in fact omitted to
specify under what sub-section he granted the order.  But that he
had the power to make an order requiring the appellants to supply
voice samples cannot be doubted.
[25] It has rightly been held that police powers to act under s 37(1)
come to an end only when an accused has been convicted, and
that, by corollary, so long as the police retain their s 37(1) powers,
a court before which criminal proceedings are pending has no
power to make the orders contemplated under s 37(3).27  This
does not however mean that such a court cannot do so under s
37(1).  In the present case, the police retained the power under s
37(1)(c) to take steps as they might deem necessary to ascertain
the characteristic or distinguishing features of the appellants’
voices.  This included the power to request the appellants to

testimonial or communicative nature’, and compulsion to speak does not violate it.

supply voice samples.  This power, in turn, could properly be
supplemented by a court order requiring the appellants to do so.
[26] The regional court’s order that the appellants supply the voice
samples in question thus reinforced and underscored the powers
of the police, by making refusal to cooperate subject to sanction
for contempt of court.  In short, sub-sections (1), (2) and (3) thus
do not operate exclusively of one another.  A court has the power
to issue an order requiring an arrested person (or any other
person contemplated in ss (1) and (2)) to comply with a request
from any of the officials named to supply the autoptic evidence
sought.  In the present case, therefore, the police retained the
power to request the appellants to supply the voice samples, and
the regional court had the power to order that they do so.  The
precise source of the court’s power is therefore best located as
deriving from s 37(1)(c).28

27 Nkosi v Barlow NO en andere 1984 (3) SA 148 (T) 154I-155E (Spoelstra J, Eloff J concurring).
28  It follows that the order in S v Huma and another 1996 (1) SA 232 (W), 1995 (2) SACR 411
(W) should have been granted in terms that made it clear that the accused were ordered to
cooperate with the police in the exercise of the powers of the latter to take finger-prints under s

REVIEW OF UNCONCLUDED PROCEEDINGS

[27] As is well established, the Supreme Court Act 59 of 1959
permits intervention by superior courts in the unconcluded
proceedings of inferior courts only on limited grounds.29 I agree
with Davis J in the Court below that no case at all was made out
that this is one of the rare cases where intervention was
warranted.30  Appellants’ counsel sought to argue that the order
requiring the provision of voice samples was of such a radical
nature, comparable to the imposition of corporal punishment, that
it was final in effect.  The argument is not persuasive.  As
explained above, the provision of voice samples is no different in
principle from the provision of a blood sample or a fingerprint.
The order granting it cannot, at this stage of the proceedings

37(1)(c).
29 Act 59 of 1959 provides:
24 Grounds of review of proceedings of inferior courts
(1) The grounds upon which the proceedings of any inferior court may be brought under review
before a provincial division, or before a local division having review jurisdiction, are-
(a) absence of jurisdiction on the part of the court;
(b) interest in the cause, bias, malice or corruption on the part of the presiding judicial officer;
(c) gross irregularity in the proceedings; and
(d) the admission of inadmissible or incompetent evidence or the rejection of admissible or
competent evidence.

30 1999 (4) SA 747 (C) 754A-755A, 1999 (2) SACR 151 (C) 157e-158a, citing inter alia Wahlhaus
and Others v Additional Magistrate, Johannesburg and Another 1959 (3) SA 113 (A), Ismail and
Others v Additional Magistrate, Wynberg and Another 1963 (1) SA 1 (A) and Key v Attorney-
General, Cape Provincial Division and Another 1996 (4) SA 187 (CC).

constitute the sort of gross irregularity that would justify
intervention.

ORDER
1. The appeal of appellants 1 and 2 is dismissed for want
of prosecution.
2. The application for condonation of appellants 3 and 4
is dismissed.

E CAMERON
JUDGE OF APPEAL

HARMS JA
)
SCOTT JA
)
CONCUR
FARLAM JA
)
JONES AJA
)