CASE NO  230/99
REPORTABLE
IN THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
In the matter between
D MOHLATHE
APPELLANT
and
THE STATE
RESPONDENT
CORAM
:
F H  GROSSKOPF, SCOTT et PLEWMAN JJA
HEARD
:
26 SEPTEMBER 2000
DELIVERED:
29 SEPTEMBER 2000
Further evidence in support of application for condonation for late filing of
heads of argument in Court below admitted on appeal - circumstances
justifying admission of such evidence - identity parade - need to ensure that
non-suspects be similar to suspects in general appearance - desirability of
photograph to enable Court to see for itself.
J U D G M E N T

SCOTT JA/.....
SCOTT JA:
[1] The appellant was convicted on two counts of robbery in the Regional
Court. He was sentenced to 10 years imprisonment on each count but eight years
of the sentence on the one was ordered to run concurrently with the sentence on the
other so that in the result the effective period of imprisonment imposed was 12
years. Both counts related to incidents in which female motorists were robbed of
their vehicles at gun point. Originally the appellant (who was accused 2 at the trial)
was charged with four counts of robbery. However, one of the counts (count 1)
was withdrawn before the commencement of the trial. He was acquitted on count
2 but convicted on counts 3 and 4.   As to his fellow accused, accused 1 was
convicted on counts 2 and 4 (and acquitted on count 3), while accused 3 and 4
were convicted on counts 2, 3 and 4.
[2] The appellant noted an appeal to the Witwatersrand Local Division

against both his conviction and sentence. Counsel’s heads of argument were filed
13 days late. The appellant’s application for condonation of the late filing was
refused by the Court a quo without reference to the merits of the appeal and the
appeal was struck from the roll. The present appeal is against that order and is
without the leave of the Court of a quo, such leave being unnecessary. (See S v
Gopal 1993 (2) SACR 584 (A).)
[3] The dates and events relevant to the application for condonation in the
Court a quo are recorded in the judgment of Blieden J as follows:
“1.
On 11 June 1998 the appellant was informed that the appeal would be
heard on 6 November 1998, which is today. On the same date and in the
same notice, the appellant was informed that his heads of argument were to
be filed on or before 6 October 1998, such being the date fixed in terms of
Rule 8(1) of the Rules of the High Court (Transvaal Provincial Division and
Witwatersrand Local Division).
2.
On 8 October 1998 as the appellant’s heads of argument had not been
filed by the due date referred to in the above paragraph, the
respondent served a notice to have the appeal struck off the roll and
this notice was served on the appellant’s attorney and counsel.

3.
On 19 October 1998, some thirteen days out of time the appellant filed
his heads of argument with the respondent and the court.
4.
On 29 October 1998 the respondent filed its heads of argument. In
these heads of argument the in limine point was taken that as the
appellant had not filed any application for the condonation of its late
filing of his heads of argument the appeal should be struck off the roll.
5.
On 4 November 1998, that is two days before the dates fixed for the
hearing of this appeal, the present application for [condonation for]
the late filing of the appellant’s heads of argument was served.”
[4] Subsequent to the trial, the appellant’s mother, acting on his behalf,
terminated the services of the attorney who had represented him at the trial and
engaged a new legal team to prosecute the appeal. At the time the appellant was in
custody as, indeed, he still is. The application for condonation was supported by
the affidavit of the appellant’s mother. The sole explanation advanced for the late
filing of the heads appears from the following paragraphs of her affidavit.
“8.
There were several consultations with Counsel prior to October 1998
in connection with this appeal. However, shortly before 6 October

1998, the due date for the filing of the Appellant’s Heads of
Argument, I had a further consultation with Counsel and was
presented with a rough draft of the Heads of Argument prepared by
Counsel. I was not satisfied that all material points had been raised in
said draft and presented Counsel with several pages of points for
argument which I insisted be canvassed in the Heads of Argument.
9.
I was advised by Counsel that as a result of these new points he was
compelled to reread substantial parts of the record, the record being
some 600 pages in length, to consider whether my points had any
merit in them.
10.
My insistence on this course of action as set out above, I intended to
be in the best interests of the Appellant. However, because Counsel
had to consider new fresh points, reread substantial parts of the
record and include these points in the Heads of Argument, it resulted
in same being filed late with the above Honourable Court.”
[5] In dismissing the application the Court a quo noted its vagueness and
lack of candour and emphasised that no attempt had been made to explain why the
preparation for the appellant’s heads of argument had only taken place shortly
before 6 October 1998.   It pointed out further that the appellant’s attorney had not
made an affidavit explaining the reason for the delay and concluded that in effect

no acceptable explanation had been furnished for the delays, including the delay in
the filing of an application for condonation.
[6] In this Court counsel for the appellant (who was not the counsel who
represented the appellant in the Court a quo) readily conceded that having regard
to the explanation advanced in the Court below he was unable to contend that it had
erred in dismissing the application for condonation and striking the appeal off the
roll. He accordingly relied solely on the further evidence which it was sought to
place before this Court by way of an application in terms of s 22 of the Supreme
Court Act 59 of 1959.
[7] The evidence sought to be admitted is contained in the affidavits of the
appellant himself, his present attorney, his mother and other members of his family.
There is much which is of little relevance but the following are the salient  facts or
allegations which emerge from the affidavits.
(a)
From the time of his conviction and sentence (the latter being imposed

on 23 December 1997) the appellant has been intent upon appealing against both
his conviction and sentence.
(b)
In early January 1998 members of the appellant’s family, acting on the
recommendation of a friend, approached an advocate directly, i e not through an
attorney, and requested him to prosecute the appeal on the appellant’s behalf.  The
advocate, to whom I shall refer as ‘K’, accepted the brief and on 13 January 1998
personally visited the appellant in prison to obtain his power of attorney to
prosecute the appeal.
(c)
The appellant’s family paid K a total of R11 000 for his services. This
amount was paid in instalments. The first, of R4 500, was paid in May 1998. The
final instalment of R1 000 was paid on 8 September 1998.
(d)
The appellant took an active interest in the progress of his appeal. At
least on two occasions he produced hand-written notes relating to the merits of the
appeal which were rewritten (and the grammar corrected) by his mother and handed

to K. The first, dated 28 May 1998, contained nothing, apart from certain
references to the Constitution, which would not have been readily apparent from
a reading of the record. The second, dated 8 October 1998, was no more than a
repetition of something the appellant said in his evidence in chief.
(e)
In response to a telephone call on 3 November 1998, the appellant’s
mother visited K in his chambers on 4 November 1998. (This, it will be recalled,
was the day on which the application for condonation was filed.) She was given an
affidavit to sign dealing with what K described as “a technical aspect”. She said she
paid little regard to its contents and merely did what she was told. K handed her a
copy of his heads of argument which she studied at home.
(f)
On reading the heads, she realised that there was to be an application
for the appeal to be struck from the roll. She immediately telephoned K to arrange
to see him on 5 November 1998, which she did. K told her not to worry and that
it was normal practice for the courts to accept affidavits seeking condonation for

the late filing of documents.
(g)
The following day, 6 November 1998, the appellant’s mother and other
members of his family were in court when the appeal was struck from the roll.
(h)
On 9 November they consulted the appellant’s present attorney. They
also lodged a complaint against K with the Society of Advocates. As a result, a
member of the society has been appointed to investigate the complaint. The amount
of R11 000 paid to K has since been returned.
[8] The circumstances in which this Court will admit further evidence,
whether on affidavit or otherwise, or remit a matter to the court of first instance for
the hearing of further evidence are extremely limited and the basic requirements that
must be satisfied before such a course will be adopted are well established.  The
formulation of those requirements by Holmes JA in S v De Jager 1965(2) SA 612
(A) at 613 C - D has been repeatedly quoted.   It reads:
“(a)
There should be some reasonably sufficient explanation, based on

allegations which may be true, why the evidence which it is sought to
lead was not led at the trial.
(b)
There should be a prima facie likelihood of the truth of the evidence.

(c)
The evidence should be materially relevant to the outcome of the trial.”
The need for circumspection is obvious. Quite apart from the interests of finality,
there is always the possibility of evidence being fabricated after conviction to meet
a weakness in an accused’s case exposed in the judgment (S v N 1988(3) SA 450
(A) at 458 F - G). In the present case, of course, the evidence sought to be
admitted does not relate to the guilt or innocence of the appellant but to the
circumstances in which the heads of argument on behalf of the appellant came to
be filed some 13 days late in the Court below.   At the time the appellant was in
custody. The best person to explain the delay would have been the appellant’s
erstwhile legal representative, K, who was engaged to prosecute the appeal and
whose duty it would have been to file the heads of argument timeously. That person
chose not to make an affidavit himself but instead to draft an affidavit for the

appellant’s mother to sign which was hopelessly inadequate.   At the time the
appellant’s mother relied upon him for advice and to do what was necessary to
carry out his mandate with reasonable skill.   By the very nature of things it is
understandable that the appellant should now find himself hard pressed to provide
an explanation why the evidence sought to be admitted was not placed before the
Court a quo.   The mandate of K has been terminated. His conduct in relation to
this case is presently being investigated. The appellant is unlikely to obtain his
cooperation in these proceedings.   In appropriate circumstances this Court has the
power to relax strict compliance with the requisite of a “reasonably sufficient
explanation”, but only in rare instances (S v Njaba 1966 (3) SA 140 (A) at 143 H).
The present case seems to me to be such an instance.
[9] The main thrust of the argument advanced on behalf of the respondent
was, however, that the new material did not assist the appellant as there was still no
explanation for the failure to file the heads of argument timeously.    There was also

no explanation why the application for condonation was filed only two days before
the matter was to be heard. Accordingly, so it was contended, the evidence sought
to be introduced was not “materially relevant to the outcome of [the application]”.
(See subpara (c) of the passage quoted above from De Jager’s case.) This brings
me to the criteria to be applied when considering an application for condonation.
In Melane v Santam Insurance Co Ltd  1962 (4) SA 531 (A) at 532 C Holmes JA
pointed out that
“the basic principle is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence it is a matter
of fairness to both sides”.
The learned judge continued:
“Among the facts usually relevant are the degree of the lateness, the
explanation therefor, the prospects of success, and the importance of the
case. Ordinarily these facts are interrelated: they are not individually decisive,
for that would be a piecemeal approach incompatible with a true discretion,
save of course that if there are no prospects of success there would be no
point in granting condonation”.

(See also S v Di Blasi, 1996(1) SACR 1 (A) at 3f - h.)   Whether an explanation is
acceptable or not for the purpose of granting condonation is therefore essentially
a matter for the discretion of the court to be exercised in the light of all the
circumstances of the case including the considerations referred to in the passage
quoted above.
[10] It is true that K did not make an affidavit in which he acknowledged
the fault to be his or attempt to explain that the reason for the failure was something
beyond his control. What I think is clear is that the appellant’s family did all that
was expected of them. They could hardly have done more. Counsel for the
respondent pointed out that the appellant’s mother did not refute the explanation
contained in her earlier affidavit of 4 November 1997 to the effect that shortly
before 6 October 1998 (the date by which the heads had to be filed) she had
furnished K with several pages of points which she insisted be canvassed in the
heads of argument. But this does not mean that the blame must be laid at her door.

K could easily have incorporated the points briefly in his heads and filed a
supplementary note later, or he could merely have done the latter and explained to
the appellant’s mother the importance of filing the heads timeously. In any event,
if the appellant’s notes annexed to the papers are anything to go by it is difficult to
imagine that an advocate who had read the record would have had much difficulty
in adapting his heads to accommodate some layperson’s point which he thought
might have merit. Presumably, neither the appellant nor his mother are trained in the
law. In all the circumstances the inference is overwhelming that the late filing of the
heads of argument was solely the fault of K.
[11] As was pointed out by Steyn CJ in Saloojee And Another NNO v
Minister of Community Development 1965 (2) SA 135 (A) at 141 C,
“there is a limit beyond which a litigant cannot escape the results of his
attorney’s lack of diligence or the insufficiency of the explanation tendered.”
He warned:

“To hold otherwise might have a disastrous effect upon the observance of
the Rules of this Court. Considerations ad misericordiam should not be
allowed to become an invitation to laxity.”
But the present is not a case in which the client simply left it to the practitioner to
get on with the case. On the contrary, the appellant’s family took a keen and active
interest in the prosecution of the appeal and kept themselves informed of
developments. There was nothing they could have done to avoid the heads being
late.   In the event,  the heads were filed 13 days out of time and eight days prior to
the hearing. No doubt this would have caused much inconvenience, but the delay
was not inordinate.   Similarly there was a delay in filing the application for
condonation, but this, too, was no more than a matter of a few days. This does not
seem to me to be an instance where the dilatoriness of the practitioner is to be
visited on the client.
[12] In all the circumstances I have come to the conclusion that the
evidence sought to be admitted is sufficient to tip the scales in favour of the

appellant at least to the extent that it would be inappropriate to refuse condonation
without reference to the prospects of success. The evidence will accordingly be
admitted. Whether condonation is to be granted or not must depend therefore
solely on an assessment of the prospects of success of the appeal. This is the
question to which I now turn.
[13] It was not in dispute that on the evening of 18 November 1996 Ms
Dianne Kritzinger, the complainant in count 3, was robbed of her BMW motor car.
Her account of the incident, in brief, was the following.   She said that just after 7
pm as she pulled into her driveway in Jukskei Park, Randburg, she observed a
white BMW motor car parked in her neighbour’s driveway. She was about to alight
when she was approached by two men. They were both armed with handguns. The
one came to the driver’s door and the other, whom she later identified as the
appellant, climbed into the passenger seat next to her. She was pulled out of the
driver’s seat and the two robbers drove off in her car. At the same

time the white BMW pulled away, driving slowly in the opposite direction.
[14] There was a marked similarity between Ms Kritzinger’s experience and
that of Ms Ann Murphy, the complainant in count 4, who was robbed of her BMW
motor car on 4 December 1996. She testified that at about 7.15 pm, as she pulled
into the driveway of a friend in Jukskei Park, Randburg, a white BMW motor car
drew up alongside her.    Four men jumped out. Two came to her door;  they were
both armed with handguns.   One of them she identified the next day as the
appellant. The window of the driver’s door was smashed and she was pulled out
of the car.   She tried to make for a nearby gate but was confronted by the other
two who had come from the white BMW car. They grabbed her and ripped her
watch from her wrist and two chains from her neck. The robbers then drove off in
her motor car followed by the white BMW.   She observed two men in the latter
vehicle.
[15] An identification parade was held at the Brixton police station the next

day, 5 December 1996, at which the appellant was pointed out by both Ms
Kritzinger and Ms Murphy. Their identification of the robbers was the subject of
much criticism at the trial. Ms Kritzinger not only pointed out the appellant at the
identification parade but also a “non-suspect” whom she said was one of the
persons she saw in the white BMW. She also requested that accused 4 be asked
to step forward so that she could have a better look at him. (The witnesses were
required to identify persons through tinted one-way glass.)   Although she refrained
from positively identifying him then, she did so months later in court.   Ms Murphy
identified both the appellant and accused 4 at the identification parade. At the trial,
however, she confused accused 4 with accused 3, pointing out the latter as the
person she had identified at the parade.    The constitution of the parade itself was
similarly criticised, both with regard to the age and the build of the non-suspect
participants. The appellant also alleged that he had been denied the right to have his
attorney present.

[16] It is convenient to consider first the appellant’s conviction on count
4.   The evidence against him on this count strikes me as overwhelming, even if his
identification by Ms Murphy is disregarded.
[17] Some time prior to the robberies the police had set up what was
described in evidence as a “front” house in Olivedale where stolen vehicles were
“received” at prices far below their true market value. The operation was conducted
mainly by inspector Silamolela who was attached to a special investigation unit at
Braamfontein. In his dealings with the underworld he was known as “Brian”.
[18] On the evening of 4 December 1996 captain Ludick of the organised
crime unit, Johannesburg, was at the “front” house in the absence of inspector
Silamolela. He testified that at 7.30 pm a blue-grey 316 BMW motor car pulled up
outside the gate. The appellant who was the driver got out of the car and came to
the gate where he was met by Ludick. The appellant asked for “Brian”. Ludick told
him that Brian was not there and suggested that the appellant speak to him on his

cellular phone. The appellant then drove the car through the gate and parked it
outside the garage. Ludick observed that the other occupants were the other three
accused. The right front window was broken. All four accused then proceeded to
search the vehicle and found in it various items including a handbag and a baseball
bat. The appellant handed the keys of the car and also the immobiliser to Ludick
and said that he would arrange with Brian for payment for the car. In the meantime
Ludick had noticed a white BMW motor vehicle parked outside with two
occupants.   He made a mental note of its registration number. The four accused
then got into the white BMW which drove away.
[19] A decision was taken to arrest the accused the next day at the “front”
house when they came to collect the money for the vehicle which had been
delivered to Ludick. At about 10.30 am on 5 December Ludick was on his way to
the “front” house for the purpose of procuring the arrest of the appellant and the
other 3 accused when he saw all four of them in the same white BMW motor car

presumably headed for the same destination. The appellant was the driver. Ludick
was accompanied by sergeant Mostert, inspector Holtzhausen and superintendent
Fourie. He feared that one or other of them may have been recognised as policemen
and the decision was accordingly taken to arrest the appellant and his fellow
accused there and then.   The white BMW was stopped, its occupants first frisked
for weapons and then more  thoroughly searched. Ludick testified that he found a
gold chain in the pocket of the appellant’s jeans.   Inspector Holtzhauzen confirmed
having been shown the chain, although he did not actually observe Ludick finding
it on the person of the appellant.    The investigation officer, sergeant Ras, was
called to the scene.   He testified that he was handed the gold chain by Ludick who
also gave him the keys to the BMW motor car which had been left at the “front”
house the previous evening.   Ras testified that both the BMW motor car and the
gold chain were identified by Ms Murphy as the motor car and chain respectively
which had been taken from her the previous evening.

[20] The appellant denied in evidence that he had participated in any of the
robberies or that he had gone to the “front” house on the evening of 4 December
1996. As far as the events of 5 December were concerned, he said that he had
merely been given a lift by the others and  was on his way to assist his aunt whose
motor car would not start. He said that he had taken over as driver from accused
3 as the latter complained that his leg was sore. The explanation offered by the
other accused who gave evidence was that they similarly were innocent and were
merely acting on behalf of someone known as “oupa” who had sent them to the
“front” house to collect money.
[21] The trial court accepted the evidence of Ludick and rejected that of
the accused (including the appellant) to the contrary. I can see no reason for
interfering with this finding. It was not suggested that Ludick’s identification of the
appellant was merely mistaken. Nor, I think, could this be seriously contended.
According to Ludick he had a conversation with the appellant on the evening of 4

December 1996. He again saw the appellant the next morning at 10.30 am when the
latter was arrested. The intervening period was therefore no more than a matter of
hours.
[22] It was suggested on behalf of the appellant that had he indeed been
involved,  it is improbable that he would have handed the vehicle over to Ludick
whom he did not know. But the “front” house as a place where vehicles were
purchased was known at least to accused 3 and 4 who had delivered Ms
Kritzinger’s vehicle to that address and received payment for it. In any event, the
fact remains that Ms Murphy’s vehicle which had been “high-jacked” at 7.15 pm
was delivered to the “front” house some 15 minutes later and the keys entrusted to
Ludick. However unwise it may have been for the robbers to trust Ludick, they
must have believed that he was in the business of receiving stolen motor vehicles.
[23] Ludick was also criticised for not arresting the persons concerned on
the evening of 4 December when they were still in possession of the stolen vehicle.

This criticism is misplaced. As explained by Ludick, he and sergeant Haley were
the only policemen present at the time.  (Haley was hiding in the house  to avoid
possibly being recognised.)   He, Ludick, was unarmed and he had no way of
knowing whether the six persons (the four appellants and the two occupants of the
white BMW) were armed or not. His decision not to attempt an arrest, it seems to
me, was a wise one in the circumstances.
[24] With regard to the gold chain, it was put to Ludick in cross-
examination that the appellant would say in evidence that Ludick had “planted” it
on the appellant and then “found” it on him at the Brixton police station. However,
in his evidence in chief the appellant gave a somewhat different version. He said that
while they were at the Brixton police station Ludick had approached him with the
chain and asked him where it had come from. In cross-examination the appellant
attempted to reconcile the two versions. His attempt was far from persuasive. In
any event, according to Ras the chain was handed over to him at the place where

the appellant was arrested  and before he and the other accused were taken to the
Brixton police station.
[25] It follows that I am satisfied that the appellant was correctly convicted
on count 4 and there can be no reasonable prospect of him succeeding on appeal.
The same is true of the sentence of 10 years imprisonment imposed in respect of
this count. It is true that the appellant was a first offender and only 21 years of age
at the time of the offence, but the regional magistrate was fully aware of this. He
nonetheless felt that the gravity of the offence was such that a sentence of 10 years
imprisonment was called for. I am unpersuaded that there is any justifiable reason
for interfering with this sentence.
[26] The appeal against the order refusing condonation must therefore fail
in so far as it relates to count 4.
[27] I turn to count 3.    The appellant’s conviction on this count rested
almost entirely on the evidence of Ms Kritzinger who identified him as one of the

robbers. As previously mentioned, Ms Kritzinger pointed out someone at the
identification parade who was not a suspect. She also identified accused 4 at the
trial as one of the robbers although she had failed to point him out at the parade.
Furthermore, the  constitution of the identification parade itself was in my view far
from satisfactory.   According to the printed form, which was completed at the
time, those participating in the parade were said to be “of about the same height,
build, age and appearance and were dressed more or less similar to the suspects”.
But this was clearly not so. The oldest of the four accused was 23.   The appellant
was 21 and accused 4 only 17 years old. It appears from the form, which records
the ages of the suspects as well as the non-suspects, that of the 15 non-suspects,
one was 40 years of age, six were in their thirties and two were 29.   Sergeant
Jordaan who was in charge of the parade suggested that in appearance they were
all more or less of the same age. I have difficulty accepting that the difference in age
between say a 17 year-old and a 40 year-old would not have been immediately

apparent. No photographs were taken so as to enable the court to judge for itself.
[28] The same difficulty arises in relation to the question of height. Two of
the accused, the appellant and accused 4, were tall and slim, the latter being taller
than the former. Accused 3 was very short and accused 1 somewhat taller.  The
appellant testified that he and accused 4 were the tallest at the parade. His evidence
was to some extent supported by that of Mr Medlock who attended the parade as
a witness in respect of count 2.   He described accused 4 as standing out “head
and shoulders above the other people in line”.    Jordaan sought to refute this by
saying that one of the non-suspects, Rashid Kaldin was no more than a few
centimetres shorter than accused 4 and that there was another non-suspect who was
of the same height and build as the appellant. But not only was Rashid Kaldin
described as “coloured”, he was 40 years of age, almost twice as old as the
appellant and more than twice as old as accused 4. The person who, according to
Jordaan, was of the same height and build as the appellant, was not identified. Once

again the absence of a photograph precluded the court from seeing for itself and
making its own assessment.
[29] Common sense dictates that the non-suspects participating in an
identification parade should be similar to the suspect in general appearance. Indeed,
as appears from the identification parade form which was used on this occasion,
it is a matter of police practice that the non-suspects be “of about the same height,
build, age and appearance” as the suspect and that they be similarly dressed.
Where the parade includes several suspects whose general appearance is markedly
different, whether on account of height, build, age or otherwise, care should be
taken to ensure that there are sufficient non-suspects whose general appearance
approximates that of each of the suspects. In such circumstances it may be
advisable to hold more than one parade, particularly if the number of non-suspects
that would be required would result in the parade being unduly large and
cumbersome. If the number of non-suspects whose general appearance

approximates that of each suspect is too few, or if there are other features of the
parade which may materially influence an identifying witness, the probative value of
the identification will be greatly reduced. The danger in such a case is, of course,
that, because the identification is made at a parade, it carries with it an assurance of
reliability which is unjustified. (See R v Kola 1949 (1) PH H 100 (A).)
[30] In order to succeed in relation to count 3 the appellant has to show
that there is a reasonable prospect of success on appeal. In the light of the
unsatisfactory features of the identity parade to which I have referred and the
shortcomings of Ms Kritzinger as an identifying witness the conclusion to which I
have come is that condonation for the late filing of heads of argument should be
granted in respect  of the appellant’s conviction on count 3.   For the reasons given
in relation to count 4, I am unpersuaded that there are reasonable prospects of

success in so far as the appeal against sentence is concerned.
[31] In the result the following order is made:
(a)
The  application in terms of s 22 of the Supreme Court Act 59 of
1959 to admit further evidence is granted.
(b)
The appeal against the refusal of the Court a quo to grant condonation
for the late filing of heads of argument in relation to the appeal to that
Court against the conviction on count 3 is upheld and condonation for
such late filing of heads of argument is granted.
(c)
The appeal against the refusal of the Court a quo to grant condonation
for the late filing of heads of argument in relation to the appeal to that
Court against the conviction and sentence imposed on count 4 is
dismissed, as is the appeal against the refusal of the Court  a quo to
grant such condonation in relation to the appeal to that Court against
the sentence imposed on count 3.
(d)
The matter is referred back to the Witwatersrand Local Division for
adjudication of the appeal against the conviction on count 3.
D G   SCOTT
Concur:

F H GROSSKOPF JA
PLEWMAN            JA