IN THE HIGH COURT OF SWAZILAND
APPEAL CASE NO.20/00
In the matter between:
SIMANGA M.NDZINISA 1ST APPELLANT
SIPHO ROBERT TWALA 2ND APPELLANT
CORAM : MATSEBULA J
: MAPHALALA J
The two accused to whom I shall continue to refer to as the two appellants were charged on two counts .
The accused are guilty of the offence contravening Section 3(1) of Act 6/1991. (The Theft of Motor Vehicle Act) In that upon or about the 23rd December, 1998 and at or near Madonsa Area in the Manzini Region, the said accused each or both did wrongfully and unlawfully and intentionally steal a Ford Courier registration No. SD 200 EG the property or in the lawful possession of Sydney Lue valued at E50,000.00.
The accused are guilty of the offence of contravening Section 12(1) of Act 16/1991. (The Theft of Motor Vehicle Act) In that upon or about the 21st December 1998 and at or near Madonsa Area in the Manzini Region the said accused each or both did wrongfully and unlawfully break and enter into a motor vehicle there situate of Bhekie Bhembe with intent to steal and did wrongfully, unlawfully and intentionally steal two (2) car radios and seventeen (17) bags of potatoes valued at E585.00 being the property or in the lawful possession of Bheki Bhembe.
Before going into the merits of this appeal, I would wish to make some remarks to the clerks of the Magistrates’ Courts who in all proceedings forwarded to the High Court, sign a certificate in which they state:-
(a) That they have compared the typed copy of the proceedings with that of the original and that it is a true and correct copy thereof.
(b) It is in fit condition to be submitted in the course of judicial proceedings to the High Court.
In the present case we found that the copies signed by the appellants regarding their rights to legal representation did not form part of the typed copy of proceedings. The Registrar had to search for such copies, resulting in a lot of waste of time. Presiding officers are enjoined to read the index of the manuscript of the typed copy before it is forwarded to the High Court. However, we have satisfied ourselves that the appellants’ rights to legal representation were fully explained.
Coming back to the merits on the appeal by the appellants. The learned Magistrate after hearing the evidence as a whole found that the Crown had succeeded in proving the case beyond a reasonable doubt against both the accused. He convicted them on count one and sentenced each accused to an imprisonment for five (5) years without an option of a fine. Their sentence was backdated to the 24th December 1998. It is against this conviction and sentence that they are appealing. Their grounds of appeal are as follows:
AD APPELLANT NO.1
1. I was convicted with an offence which I never committed. The evidence which was delivered before court was not sufficient for my conviction and sentence.
2. The doctor’s report which was delivered before court was not mine, it was for a certain Vusie Mtsetfwa.
3. The doctor even delivered evidence in court that he treated Vusie Mtsetfwa who was shot not me.
4. The police officer from Pigg’s Peak (PW1) stated in court that he shot his suspect on the back of his thigh during the chasing.
5. The evidence of the complainant (PW2) contradicted the evidence of PW4 which is the investigating officer. PW2 stated that his car was released on the 26th December 1998, while PW4 stated that he released it on the 27th December 1998, that proved that they were referring to different versions.
6. PW3 Zakhele who was the Crown witness and was found inside the vehicle failed to identify myself in court.
7. The evidence of the police PW4 contradicts the evidence of PW2. PW4 stated that he drove the vehicle from the police station to the court on the 27th December 1998, but PW2 stated that he drove the said vehicle from the police station to court himself on the 26th December 1998.
8. The Pigg’s Peak police erred infact and in law by not arresting the two people who were allegedly found in the aforesaid vehicle so that they can help in identifying the real culprit.
9. The evidence of PW1 contradicted the evidence of the complainant (PW2) in the fact that the vehicle in question or he find was white in colour, but PW2 stated that his car was silver grey in colour. The court was also shown a silver grey vehicle.
10. PW1 stated that his suspect was taken to hospital, but I was never taken to hospital and I was never shot.
11. PW4 stated even in court that he knew nothing concerning hospital and I being shot at by anyone.
The sentence is very harsh and induce a sense of shock. May the court please reduce it only if conviction is proved.
I hope my application reaches your favourable consideration.”
AD APPELLANT NO.2
“I am hereby lodging this application for appeal against my conviction and sentence imposed by Manzini Principal Magistrate Dumsane Magagula on the 2nd November 1999.
Be pleased to be informed that my appeal is forwarded basically on the following grounds which led to my dissatisfaction about the judgment of the Principal Magistrate or Court.
1. I was convicted for an offence I never committed.
2. PW4 delivered false evidence in court when saying that he find me in possession of a manual book as well as some set of tools for the stolen vehicle.
3. PW2 who is the complainant stated clearly in court that nothing was missing from his car except that the car was dirty.
4. The complainant even specified in court on the 26th December 1998 everything was present in his car and I was arrested on the 27th December 1998 which is the following day.
5. I was not found in the aforesaid scene of the crime which is Pigg’s Peak, the police arrested me at home in Maliyaduma which is far away from Pigg’s Peak.
6. No fingerprints were taken on both the car and the exhibits to verify the culprit.
7. The police PW4 delivered a false evidence in court when saying he brought us before court on the 27th December 1998 which was a Sunday, and that proves that everything he said was pure lies.
8. Even the alleged co-accused never or disassociated myself with the case.
9. My alleged co-accused denied in front of the court ever telling the investigating officer PW4 about myself concerning the committing of the crime.
10.The investigating officer PW4 erred in fact and in law by not making an alibi when getting the manual book and the tools, so that they can give corroborating evidence in court.
11.The sentence is very harsh and induce a sense of shock, more especially for a crime which I never committed.
May the respective High Court reduce the sentence only if conviction is proved.
I think the court will forward my appeal to the High Court to be processed without any prejudice, as you know that justice delayed is justice denied.
I hope my application reaches your favourable consideration.”
I shall now continue to view the evidence led and accepted by the Magistrate.
PW1 3479 Constable Mfanasibili Dlamini was patrolling the streets at Piggs’ Peak when he noticed a motor vehicle whose description answered to reported stolen vehicle by the Manzini Police. He looked at the registration number and then decided to go to the police station to compare it with the one furnished by the Manzini Police. When he came back to where the motor vehicle had been parked he found that it had been driven away. He and the Station Commander, a lady, Assistant Superintendent Zodwa Mkhaliphi then decided to drive along the Matsamo, Pigg’s Peak road near Rocklands. He spotted the motor vehicle again. PW1 drove closer to the motor vehicle and notice that its registration number had been selotaped that the SD280, the second figure looked like an 8 and not zero. PW1 was driving a clearly identifiable police motor vehicle and was wearing a police uniform. It was his evidence that he drove close to the motor vehicle and the Station Commander who was on the side of the driver of the said motor vehicle signalled to the driver to pull to the side. The driver seemed to be obeying the instructions by the Station Commander. PW1 states, he clearly saw who the driver was. He, PW1 prepared to stop behind the motor vehicle when suddenly the driver accelerated and drove away. He noticed that in the motor vehicle there were other occupants. When the driver sped off, he gave chase in his motor vehicle. PW1 sounded his hooter and flashed his lights to no avail. He fired two shots to scare him still to no avail. He fired a third shot and the driver stopped, jumped out of the motor vehicle and fled into the plantations. PW1 pursued him and fired more shots into fleeing man but he was undeterred. PW1 finally shot him on his leg and managed to overcome him. He then warned him in terms of the Judges’ Rule. He arrested him and detained him at the police station. The passengers who were in the alleged stolen motor vehicle also disappeared. He subsequently identified him as appellant no.1. Appellant no.1 was subsequently handed to the Manzini Police.
When describing the motor vehicle PW1 said it was white and subsequently explained how he made that mistake. He told the court on the same night another motor vehicle also a van white in colour was brought to the police station by the members of the Defence Force. He said the one driven by accused no.1 was silver grey in colour. The explanation was accepted by the trial Magistrate. I am in agreement with the acceptance.
When the motor vehicle was viewed by the court, all the other features e.g. the registration number which was selotaped accorded with his evidence.
The first appellant cross-examined PW1. In my view he did not deny the substance of PW1’s evidence. There is absolutely nothing appellant no.2 said in cross-examination of PW1 that is of substance.
The Crown also led the evidence of PW2, Zakhele Mogale. PW2’s evidence in very material respect corroborated PW1. How he came into the picture is that he and others one of whom he knew as Gule were hitching a hike when a motor vehicle stopped. It was a grey van driven by a gentleman who had dreadlocks. The motor vehicle was a Ford. Already in the motor were two other women.
The motor vehicle turned towards Rocklands compound. PW2 saw the police motor vehicle flicking lights and the occupants draw the attention of the driver that the police were stopping him. PW2 identified the driver of the van as appellant no.1. It is true that such an identification does not carry as much weight as one where a proper identification parade is mounted, but there does not seem to be any reason why PW2 would falsely implicate appellant no.1 and not appellant no.2. Under cross-examination appellant no.1 does not dispute PW2’s evidence. He does not seem to deny that he too like the driver wore dreadlocks. Again there is nothing of substance that appellant no.1 challenges in the evidence of PW2.
A very important question was put by the learned Magistrate whether the two other women passengers had bordered appellant’s motor vehicle where he, PW2 and the other gentleman bordered it. His answer is that when the appellant’s motor vehicle stopped to pick up PW2 and Gule the two ladies were already passengers. This piece of evidence corroborates that of PW1.
The Crown also led the evidence of PW3 who is the complainant on count 1, Sydney Lue. The motor vehicle which is the subject of count one belongs to him. He parked it at Madonsa on the 23rd December 1998. He was woken up at by a nightwatchman who made a report. He went to the garage where he had parked his motor vehicle and found it missing. He had locked the motor vehicle when he parked it and kept the keys. He reported the missing motor vehicle to the Manzini police station. Two days thereafter the police called him to the police station and there he was shown a motor vehicle which he identified as his missing motor vehicle. When he identified his motor vehicle there were two men, one wearing dreadlocks. PW3’s evidence in so far as the alteration of the figures corroborates that of PW1. The two gentlemen who were brought by the police before he identified his van never challenged the identification. PW3 identified appellant no.1 as one of the gentlemen. PW3 hand-in the registration certificate of the motor vehicle as confirming that it was his. PW3 was even taken to the motor vehicle outside court and further identified it in the presence of the appellants and the presiding Magistrate. He stated the items which were in the motor vehicle when he parked it before it was stolen were still intact. However, there was in the his motor vehicle a strange radio which had not been there when he parked it.
Under cross-examination appellant no.1 merely wanted to confirm that nothing went missing from PW3’s motor vehicle. Appellant no.2 had no questions to put to PW3.
A question by court was answered by PW3 that apart from the dreadlocks appellant no.1 was limping and there was bleeding coming from his trousers.
PW3 was cross-examined by both appellants. Appellant no.1 wanted to know from which side of his body was the blood coming. PW3 stated that if he was not mistaken it was coming from the left leg and PW3 indicated appellant no.1’s thigh. The rest of the cross-examination does not take the matter any further in so far as appellant no.1 is concerned.
Appellant no.2 only asked PW2 if he spoke anything to PW3 when he saw him for the first time at the police station and PW3 answered in the negative.
PW4 was 3463 Constable N. Shabangu. He took part in the investigations of this matter involving the two appellants. On 28th December 1998 he received a docket relating to a theft of a motor vehicle. Appellant no.1 was already in custody. He cautioned appellant no.1 in terms of the Judges’ Rules. Appellant no.1 took him to Maliyaduma. At Maliyaduma he and appellant no.1 surfaced at a homestead which turned out to be that of appellant no.2. PW4 introduced himself to appellant no.2 and cautioned him in terms of the Judges’ Rules. He informed him about the matter he was investigating. He searched appellant no.2’s homestead and found in a bag some spanners and a log book relating to a Ford Courier motor vehicle. These items were positively identified by PW3 as items which were in his motor vehicle before it went missing. This piece of evidence was accepted by the learned Magistrate and I can think of no reason, why he should not have accepted it. Both appellants had not challenged PW3’s identification.
There may have been a mix-up of dates by PW4. However, the learned Magistrate was alive to these contradictions and stated in his reasons for judgment that the Crown witnesses gave very credible evidence and he accepted this evidence. The two appellants’ cross-examination did not, in the least, weaken the Crown case. Once these items including the spanners and radio had been found on the possession of appellant no.2 it was upon him to give a reasonable explanation how he came by these items. It is true and trite that no onus rests on an accused to convince a court of his innocence, but where some damning evidence implicates an accused and he fails to give a reasonable and acceptable explanation, a court of law is perfectly entitled to draw the only reasonable inference that the accused is the person who committed the crime charged.
Both the appellants also took the witness stand and gave evidence. But before the appellants were afforded the opportunity to give evidence the Crown applied that they be granted leave to reopen their case. The reason for this application was stated by the Crown that after going through the record they felt that it would be in the interest of justice that a doctor was called to give evidence relating to whether or not he had treated first appellant for certain injuries he had sustained when allegedly shot by PW1. It does not seem to me that the learned Magistrate handled the application judiciously. In the record of proceedings placed before us the Magistrate merely states:-
“COURT – explains to accused the application and rule that the case should be opened.”
First appellant had revealed very early during the trial that he was denying that PW1 had shot and injured him (see page 7 of the record of proceedings). I heard you tell the court that you shot me? Do you have any evidence of that?
It boggles one’s mind how after the close of the Crown case would the prosecutor suddenly discover that it would be in the interest of justice to call the doctor.
The doctor’s evidence when subsequently adduced was completely irrelevant. It neither advanced the Crown case nor assisted the court in arriving at a just decision. The doctor gave evidence about a patient called “Vusi Mtetwa” and not the first appellant. The doctor’s evidence was totally irrelevant.
I now turn to consider the appellants’ evidence and their cross-examination by the Crown prosecutor. Both the appellants’ evidence riddles with contradictions especially when one looks at their answers at cross-examination by the Crown. For the purpose of this judgment it is not necessary to analyse the appellants’ evidence and their answers in cross-examination. All the Crown witnesses were lying, they said. No reason is advanced why a witness like Zakhele Mogale who had been given a lift by appellant no.1 should turn around and testify against his benefactor. No reason why PW3 Sydney Lue should be against people he had never met before. The learned Judge very carefully analysed the total evidence; found the Crown witnesses very credible and reliable.
This court sitting as a Court of Appeal will not lightly interfere with the findings of credibility by a trial court and will only do so if they are manifestly wrong. In this appeal I am unable to find that the findings by the Magistrate are wrong.
In the result, I dismiss the appeal against conviction on count one and the sentence imposed on both the appellants and hereby confirm the Magistrate’s findings.
J.M. MATSEBULA I agree: S.B. MAPHALALA