Court name
High Court of eSwatini
Case number
1075 of 2009

Nhlabatsi v The National Court President Shiselweni District and Another (1075 of 2009) [2009] SZHC 120 (30 March 2009);

Law report citations
Media neutral citation
[2009] SZHC 120











IN
THE HIGH COURT OF SWAZILAND





HELD
AT MBABANE



CIV.
CASE NO. 1075/09









In
the matter between:



MBONGISENI
NHLABATSI



Applicant










And






THE
NATIONAL COURT PRESIDENT SHISELWENI DISTRICT






THE
ATTORNEY-GENERAL






Date
of hearing: 27 March, 2009 Date of judgment: 30 March, 2009











1st
Respondent 2
nd
Respondent









Mr.
Attorney Bongani S. Dlamini for the Applicant Mr. Attorney Thabo
Dlamini for the Respondents











JUDGMENT






MASUKU
J.



[1]
The Applicant has approached this Court on an urgent basis,
seeking
inter
alia:
an
Order:-





  1. Dispensing
    with the normal forms of service and time limits and hearing the
    matter on an urgent basis;



  2. Calling
    upon the 1
    st
    Respondent to dispatch on or before Wednesday 25
    th
    March, 2009 the record of proceedings in respect of the criminal
    matter and forward the same to the Registrar of the above Honourable
    Court;



  3. Reviewing,
    correcting and/or setting aside the 1
    st
    Respondent's
    conviction of the applicant on the basis that the same matter
    involving the same parties was deliberated and concluded by the
    Ngcoseni Umphakatsi and therefore that the 1
    st
    Respondent
    had no jurisdiction over the matter.



  4. Reviewing,
    correcting and/or setting aside the conviction of the applicant by
    the 1
    st
    Respondent on the basis that the animal in question was a domestic
    animal, the killing of which could only give









rise
to a civil claim in favour of the owner as opposed to criminal
proceedings;




  1. Reviewing,
    correcting and/or setting aside the sentence imposed by the 1
    st
    Respondent on the basis of such sentence being so unreasonable so
    as to lead to the conclusion that the 1
    st
    Respondent did not properly apply his mind to the issues before him
    in imposing such sentence and the legal requirements for imposing a
    lawful sentence;



  2. Substituting
    the sentence imposed by the 1
    st
    Respondent
    upon the applicant with a lawful sentence taking into account the
    circumstances of the matter;


  3. Costs
    of the application.










Before
I can proceed to recount the salient facts giving rise to the
present application, I am compelled to make an observation regarding
the manner in which the Notice of Motion, reproduced above was
crafted. A notice of motion serves one principal purpose. It is to
set forth for the Court and other interested parties the relief or
order sought from the Court. The bases upon which the orders sought
are and should not be included in the notice of motion. These are to
be found in the founding affidavit and possibly other affidavits
filed in accompaniment to the notice of motion.









From
what I have said above, it becomes immediately



clear
that the Applicant has abused the purpose of the


notice
of motion by unnecessarily burdening it with the


bases
upon which the respective orders sought are


predicated.
This is obviously wrong and should not be


done.
The notice of motion must be confined to the above


purpose
and the particulars of the bases upon which the


orders
are sought should be left to the affidavits


accompanying
the same. The learned authors Lansdowne


&
Campbell,
South
African Criminal Law and Procedure,


Vol
V, Juta, 1982, say the following at p 699:







"The
notice of motion
setting
out the decision or proceedings sought to be reviewed

must be supported by an affidavit giving the grounds and the facts
upon which the applicant relies to have the decision or proceedings
set aside or corrected." (Emphasis added).







[4]
I now turn to the facts that give rise to the present application.
They are these: The Applicant is a Swazi male adult of Siyendle area
in the Shiselweni District. He states, and this appears not to be
controverted, that sometime in March, 2009, on unspecified dates, an
animal surreptitiously went into his maize fields and spoilt his
crop on a number of instances. He did not see it however. Still,
during the same month and on a later date he could not recall, he
saw some movements in his maize fields and upon a close examination
of the fields, he noticed that there was a pig which was helping
itself to his crop, destroying fully grown maize in the process.











[5]
Out of anger and frustration at the sight he was beholding, he took
a spear and stabbed the pig and it succumbed to the injuries he
inflicted. The pig in question belonged to Badumile Nkambule,
who on learning of the fate of his pig, went to lay a report at the
Ngcoseni Umphakatsi. The matter was deliberated upon and the
Applicant was ordered to compensate the complainant in money for the
value of the pig in question. On the other hand, the Applicant was
also ordered to compute his own losses suffered as a result of the
marauding pig, which destroyed his crop aforesaid.











[5]
Whilst preparing to comply with the order issued at the Umphakatsi,
the Applicant was summoned by the 1
st
Respondent
to answer to a charge of malicious damage to property. He pleaded
guilty thereto. Evidence was thereafter led by the complainant as to
how his pig went missing and that he sent some boys in search of it.
They met the Applicant, who showed them where the carcass of the pig
lay and told them that he had killed it. There was nothing material
raised in cross-examination by the Applicant. The Applicant, after
what must have been the close of prosecution's case, (I say so
because it is not clearly stated in the record of proceedings) was
advised of his rights and he chose to lead sworn evidence.











[6]
I interpolate to observe that all this occurred in the context of a
plea of guilty. The Applicant adduced sworn testimony and stated
that he found the pig
in
flagrante delicto
as
it were, destroying his maize and pumpkins and he stabbed it three
times with a spear. This, he testified, he did out of anger. The
complainant's boys came and he told them that he had killed the pig
and the matter was reported to Umphakatsi and later to the police.
The Applicant was ultimately found guilty and was sentenced to six
(6) weeks imprisonment without the option of a fine. It is this
conviction and sentence that he seeks this Court to review, correct
and set aside.











[7]
The Respondents oppose the application for review and to that end,
filed an affidavit deposed to by the 1
st
Respondent.
The propriety of a judicial officer filing an affidavit in review
proceedings is in my view very doubtful. It should be avoided at
all costs, unless there are matters alleged in the papers which tend
to cast aspersions on the said officer's credibility in handling
that matter. It suffices, in most of such matters, for the record to
be availed and for any matters arising therefrom to be dealt with on
the basis of the record. In any event, in the majority of cases, the
issues that arise are legal and need no factual allegations which
would necessitate that the presiding officer should file an
affidavit. In the instant case, there is nothing substantial that
arises from the affidavit filed by the 1
st
Respondent and I shall not have much regard to his depositions as
the matters that arise are purely legal in nature and character.









From
reading of the Applicant's papers, there are basically three issues
which require this Court's determination. First is whether the
matter could be properly regarded as
res
judicata
on
the grounds that it had been dealt with by the Umphakatsi and some
decision handed down thereat. Second, whether it was wrong to charge
the Applicant with malicious injury to property, considering that
the animal in question was a domestic animal and last, whether the
trial Court was correct in meting out the sentence it did,
considering that the then accused was not given the option to pay a
fine.











[9]
Having fully set out the matters in contention and to the extent
that I have, there is one matter that sticks out like a sore thumb
and it deserves to be answered ahead of the issues raised by the
Applicant for this Court's determination. The question is whether
the Applicant is properly before Court on review, considering the
nature, character and effect of the orders he seeks? This, is in my
view, a fundamental issue, which if held against the Applicant could
serve to non-suit him.











[10]
In this regard, and in order to answer the question that I have
raised above, it becomes imperative for the Court to properly
delineate the boundaries between the two procedures of appeal
and review. For an authoritative


distinction,
I can do no better than to have regard to the


writings
of the learned Judge L.C.T Harms,
Civil


Procedure
in the Supreme Court,

Butterworths, 1998, at


p
477, where the learned Judge said:







"An
appeal involves a re-hearing on the merits but limited to the
evidence or information before the lower tribunal and the only
question is whether the decision was right or wrong. A
review
involves a limited re-hearing and the question is rather whether the
procedure adopted was formally correct. An appeal is directed at the
result of a trial, whereas a review is aimed at the method by which
that
result
was obtained."







1.
In
Home
Defenders Sporting Club v Botswana Football Association
[2005]
2 B.L.R. 400 at 403 Lesetedi J. dealt with the question of review in
the following terms:



"Unlike
an appeal, a review is not concerned with whether the decision
complained of was right or wrong. It is concerned with the decision
making process itself, that is, whether the manner in which the
decision was reached was proper or not. See
Chief
Constable of the North Wales Police v Evans
[1982]
3 All E.R. 141 (HL)". See also
Krum
& Another v The Master and Another
1989
(3) S.A. 944 (D).









A
brief consideration of the prayers sought by the Applicant,
considered
in
tandem
with
the grounds upon which the complaints are predicated, should provide
an answer as to whether the Applicant has correctly approached the
Court on review or would, on the other hand, show that he had to
bring the complaints or some of them on appeal.











On
the question of the application of the doctrine of res
judicata,
it
is clear that he is attacking the competence of the Court to hear
the matter. That is, however, a legal matter that was clearly not
before the trial Court and it did not, in the event, have to decide
on it. Acording to the authors Lansdwne & Campbell at 695,
issues of absence of jurisdiction, which includes the above plea are
matters that can properly be brought on review. This is based on
section 24 of the Supreme Court Act, 1959 of the Republic of South
Africa, whose scope of jurisdiction is brought into operation in
this country by section 2 (1) of the High Court Act, 20 of 1954. I
am of the view therefore that on this score, the Applicant is on
firm ground.




  1. Regarding
    the question whether it was proper to charge the Applicant in a
    criminal forum for killing the beast in question, considering, as
    it is claimed that it is a domestic animal has nothing to do with
    the procedure followed by the trial Court in reaching the decision
    it did, it is my view that this is a matter fit for appeal. Whether
    the proper forum that should have decided the matter was a civil
    court, as the Applicant contends, is clearly a matter for appeal as
    opposed to review. I however do not state my views authoritatively
    in this wise for the reason that Mr. Dlamini decided to abandon
    this argument.



  2. The
    last issue on which the Court is required to intervene relates to
    the question of sentence. In this regard, the Court is required by
    the Applicant to review, correct and/ or set aside the sentence.
    The grounds upon which the Court's interference is sought is that
    the 1
    st
    Respondent did not apply his mind properly to the question of
    sentence and disregarded the legal requirements for imposing a
    lawful sentence. In this regard, I agree that the sentence imposed
    clearly shows that the 1
    st
    Respondent
    did not properly apply his mind to the facts before him and failed
    to take into account relevant considerations.










In
this regard, the following matters come to the fore. Firstly, the
Applicant pleaded guilty to the offence. This, in the circumstances
of the instant case, was to be properly regarded as a sign of
contrition, warranting that plea to be accorded due weight at the
stage of sentencing by adjusting the sentence downwards. Evidently,
the Court
a
quo
did
not take this issue into account at all. Second, the element of
anger caused by the complainant's pig destroying the Applicant's
crop was a major factor that deserved to have been taken into
consideration by the Court in sentencing the Applicant.



That
would have amounted to provocation. See S
v
Beaule
1984
[Part 2] Z.L.R. 145 at 149.




  1. Furthermore,
    it was clear on the facts that the Applicant was a first offender
    who, as demonstrated by the evidence, does not appear to have had
    any premeditation before committing the offence. This should have
    enured to his benefit. Furthermore, the Courts have time and again
    generally emphasised the need, where circumstances justify, not to
    send first offenders to a custodial sentence. In the instant case,
    it would appear that a fine would have appropriately met the
    justice of the case.



  2. There
    are other issues that the Applicant has mentioned in his papers,
    obviously with the belated benefit of legal advice. They are
    directly relevant to mitigation but were not elicited from him
    during the trial, considering in particular that he was and could
    not be represented before that Court. It is my view that Courts in
    which accused persons are not represented should be particularly
    sensitive and ensure that the accused person is assisted in
    conducting his or her defence and if need be, ask pertinent
    questions that may serve to assist him or her. In this regard, the
    Applicant has now deposed, and this is not controverted, that he is
    employed and stands to lose his means of livelihood as a result of
    the sentence imposed.










Mr.
Dlamini, for the Respondents, contended that the Applicant should
have brought his complaint about the sentence on appeal and not
review. I do not agree. Given the particular circumstances of this
case, the appeal would have come a little too late for his benefit,
considering the relatively short but effective sentence imposed on
him. By the time the appeal would have served before Court, he may
well have served the sentence and his situation could not be undone
by a finding in his favour at that stage and whatever success he may
achieve on appeal could not cause him to



"unserve"
the sentence he will have served. I have also found support from
Lansdowne 8
b
Campbell
(supra)
for
the view that sentence may be set aside on review and that it is not
a matter that is amenable to being set aside only pursuant to an
appeal. See pp 682-690 of Lansdowne & Campbell
(op
cit).









Before
I conclude this matter, I should mention that it would appear to me
that if the matter that I have found was to be brought on appeal,
the Appellant does not have bright or any prospects of success. I
say so considering that I was addressed by Counsel at length in
relation to same. Significantly, Mr. Dlamini for the Applicant
abandoned his argument on prayer 4. This was indeed very wise. I say
so considering the case of
Beaule
(supra)
in
which a bull was shot dead by the appellant for destroying his crop
over a very long period of time. The Supreme Court of Zimbabwe, per
McNally J.A., found that he had been correctly found guilty of
malicious damage to property.



In
this regard, I should mention that although I had some reservations
about the propriety of the charge, which I readily expressed in
Court during the hearing, my restlessness was removed and I was
pacified by the
Beaule
case
together with the writings of Hunt,
The
South African Criminal Law and Procedure,

Vol II, upon which Mr. Dlamini for the Respondents monotonously
harped in argument. There appears to have been nothing wrong in my
judgment with the Applicant being subjected to both civil and
criminal proceedings in relation to his unlawful conduct for it is
known that one set of circumstances may give rise to more than one
set of proceedings e.g. civil and criminal or even disciplinary. In
this regard, there is no need to interfere with the judgment of the
Court
a
quo
on
this score.









In
any event, it is clear that the Applicant has not complied with the
order of the Umphakatsi to compensate the complainant. It would
still be open to him, if I am not correct on this, to raise the
issue that he has been already convicted for the same offence when
compliance is required of him by the Umphakatsi and it is at that
stage that the matter can be fully argued and definitively decided
one way or the other.




  1. The
    proper order, in my view, is to set aside the sentence of
    imprisonment imposed on the Applicant by the trial Court. Just at
    that juncture, I have to answer one major and critical question
    viz:
    do
    I remit the matter back to the trial Court or this is a proper case
    in which to substitute the decision of the Court
    a
    quo
    as
    the Applicant has prayed?



  2. The
    general position relating to such matters is that the reviewing
    Court does not ordinarily substitute its decision for that of the
    board, tribunal or functionary whose decision it was called to put
    under the spotlight of review. It is only in exceptional
    circumstances that the Court will resort to the extra-ordinary step
    of making the decision itself, rather than remitting it to the
    court, tribunal, functionary or board concerned.










The
leading authority on the circumstances in which the


Court
can be at large to take that extra-ordinary step is


to
be found in the words of Hiemstra J. in
Johannesburg



City
Council v the Administrator of the Transvaal
1969
(2)


S
A 72 (T) at p 76, where His Lordship had this to say:







"(i)
Where the end result is in any event a foregone conclusion and it
would merely be a waste of time to order the tribunal or functionary
to reconsider the matter. This applies more particularly where much
time has already been lost by an applicant to whom time is in the
circumstances valuable, and further delay which would be caused by
the reference back is significant in the context.







(ii)
Where the tribunal or functionary has exhibited bias or incompetence
to such a degree that it would be unfair to require the applicant to
submit to the same jurisdiction again."



This
position applies with equal force in this jurisdiction and I have in
mind a judgment by Dunn J. where he quoted the above statement with
approval. I was, however, on account of time constraints,
considering the urgency attaching to this matter and the difficulty
associated with locating previous judgments of this Court,
particularly the unreported ones, which are in the majority, unable
to lay my hands on the said judgment.









What
I do need to stress, however, is that the learned Hiemstra J. did
not, by stipulating the above exceptional conditions purport to lay
down a
numerus
claussus
of
the exceptional circumstances where the Court may substitute its
decision for that of the court, tribunal, functionary or board in
question. I am of the view that it would be dangerous in any event
to purport to lay down any such limitations and to consider same
cast in stone. I say so in recognition of the obvious fact that
societal intercourse and development throw up a vagary of situations
which may not have been within the contemplation of the learned
Judge when he made the landmark statement 30 years ago. The Court
may be faced with a novel situation now, which may appear to it
































to
be of an exceptional nature as to justify the excursion referred to
above.




  1. Reverting
    to the instant matter, there is no gainsaying that the Applicant is
    in custody serving sentence as I read this judgment. It common cause
    that any further delay that may be incurred by referral of the
    matter to the Court
    a
    quo
    for
    that Court to reconsider the appropriate sentence may yield grave
    injustice to the Applicant and to members of his immediate family
    with each passing day. I say the latter because prospects of his
    losing employment are overwhelmingly high. In short, it is
    abundantly obvious that to him, time is of the essence, within the
    first exception mentioned by Hiemstra J.



  2. Secondly,
    I am of the opinion that the manner in which the trial was handled
    by the Court
    a
    quo,
    was
    not entirely competent. I say so for the reason that although he had
    pleaded guilty, he was still subjected to a fully blown




trial;
no ruling was made as to the fact that he had a case to answer; the
Court "cross-examined" him, to mention but a few anomalies.
These were not however serious anomalies that can be said to have
resulted in a failure of justice in the circumstances, particularly
considering that the Applicant had pleaded guilty to the offence.









More
telling, however, are the issues that I mentioned in paragraphs 15
and 16 above, regarding the myriad of issues the trial Court failed
to take into account in assessing the condign sentence. In short, the
Court
a
quo
dismally
failed to exercise its sentencing discretion properly. In particular,
it failed to balance the three competing interests in sentencing,
referred to in legal parlance as the
triad.
To
send a person in the Applicant's position to jail for such an
offence, committed in such circumstances, was shocking and it would
not be out of place to surmise, in view of the foregoing, that some
other equally unjust but different sentence may still be meted out to
him should this Court refer this matter for a fresh sentence. That
Court does not seem, from the record, to believe that there are other
effective ways of meting out sentence than sending the offender to
prison and this appears to be so regardless of the attendant
circumstances which may inexorably point otherwise.












In
the premises, I hereby order as follows:




  1. The
    sentence of six (6) weeks' imprisonment imposed upon the Applicant
    by the 1
    st
    Respondent
    on 18 March, 2009, be and is hereby set aside.



  2. I
    accordingly substitute therefor the following sentence: the
    Applicant is sentenced to a fine of E500.00 which is wholly
    suspended for a period of three years subject to the condition that
    he is not, within the period of suspension, found guilty of an
    offence in which damage to the property of another is an element.




29.3
The Respondents be and is hereby ordered to pay the costs of this
application on the scale between party and party. Such costs are not,
however, levied against the 1
st
Respondent in his personal capacity.









DELIVERED
IN OPEN COURT IN MBABANE ON THIS THE 30
th
DAY OF MARCH, 2009.







T.S MASUKU



JUDGE





Messrs.
B.S. Dlamini Attorneys for the Applicant






The
Attorney-General's Chambers for the 1
st
Respondent