Court name
High Court of eSwatini
Case number
63 of 2010

R v Dlamini and Another (63 of 2010) [2011] SZHC 121 (07 June 2011);

Law report citations
Media neutral citation
[2011] SZHC 121













IN
THE HIGH COURT OF SWAZILAND



HELD
AT MBABANE



CASE
NO. 63/10











In
the matter between:











SIFISO
DLAMINI

…....................................................................1st
APPELLANT



MFANAWENKHOSI
DLAMINI
…..................................2nd
APPELLANT















AND



THE
KING



CORAM
SEY, J



FOR
THE CROWN MR PHILA DLAMINI



FOR
THE ACCUSED IN PERSON















JUDGMENT















SEYJ



[1]
It is apparent from the record of proceedings that on count 1 both
Appellants named herein were charged with the offence of House
Breaking with intent to steal and Theft. On count 2, the 1
st
Appellant was charged (together
with Accused No. 3 who has not filed an appeal) with the crime of
Robbery.















[2]
At the conclusion of the trial the l
stAppellant
was convicted of both count 1 and count 2 whereas the 2
ndAppellant
was convicted of count 1. The l
stAppellant
was on count 1 sentenced to four (4) years imprisonment without an
option of a fine and on count 2 sentenced to six (6) years
imprisonment without an option of a fine. The sentences are to run
concurrently.















[3]
The 2
nd
Appellant was sentenced to four
(4) years imprisonment without an option of a fine. However, when the
matter came up for hearing before this Court on the 28 day of April,
2011, the 2
nd
Appellant intimated that the
matter he was complaining about had been resolved and that he wished
to withdraw his appeal. At that stage the 2
n
Appellant's appeal was thereby
struck out.















[4]
The 1
st
Appellant now appeals against
both his conviction and sentence. He argued that he was wrongly
convicted for a crime he did not commit. He said that on a date in
October 2008, he was from his house en route to the shop when he was
assaulting by community police officers who had accused him of
stealing a black wallet. He said the black wallet belonged to him and
he argued that the complainant had told the Court that his wallet was
brown in colour. The 1
st
Appellant also argued that the
bush knife belonged to him and that the witnesses had lied against
him. He also challenged the evidence of the witnesses as conflicting
because PW3 had stated that he was slim whereas PW4 had said he was
able to identify him because he was fat.











[5]
Briefly put, the facts are as follows. Some days later after PW4 Muzi
Simelane was robbed, he saw the 1
st
Appellant in Manzini town
carrying the Sagem cell phone stolen from his house. He was giving
the cell phone to someone but on realizing that PW4 was looking at
him, he took the cell phone and ran away. PW4 then traced the 1
st
Appellant to New Village where
he found him. He reported the matter to the community police who
assisted him in apprehending the 1
st
Appellant. He was searched and
PW4 found his wallet in his back pocket.















[6]
The evidence of PW4 with regard to the cell phone was not challenged
under cross examination. It is trite law that what is not challenged
as evidence stands. Moreover, I find that PW4's testimony is
corroborated by that of PW3 Sindi Ndzimandze. At page 6 of the record
she testified as follows:



"My
cell phone that he took was a Sagem. He also took my other cell
phone, a Sony Ericsson, towel with stripes, black wallet Al
is
the one who told me to lie …....down and was carrying a bush
knife".















[7]
I have also found the evidence of PW2 quite telling. He stated that
he was a taxi man and he had got to know the 1
st
Appellant through his brother
who had trained him. He testified that at 12 midnight on the 29
th
October, 2008, he had conveyed
the 1
st Appellant
and his friends from Mncozini area to New Village. They were carrying
plastic bags full of grocery items which were later found by PW4 who
took them to the police station. These items were later identified by
PW1 as the ones stolen from her shop.















[8]
I have considered the 1
st
Appellant's argument and the
grounds of his application but in my view the application lacks
merit. I am in agreement with the Respondent's submission that the
court a quo did not commit any error and/or misdirect itself in
finding the 1
st
Appellant guilty as charged on
both counts. I am satisfied that the 1
st
Appellant was correctly
convicted.















[9]
The Respondent has submitted that there is no misdirection or
irregularity on the Magistrate's exercise of his discretion on
sentence and therefore no grounds upon which this Appellate Court can
be invited or persuaded to interfere with the sentence meted out on
the Appellant. Counsel referred the Court to the



case
of
Thwala v Rex 1970
-76 SLR 363 at 364
where
Ogilvie



Thompson
P
stated as follows:



"there
is also a further principle that the sentence should only be altered
on appeal if the discretion has not been judicially and properly
exercised; and the criterion applied in relation to that is whether
the sentence is vitiated by irregularity or misdirection or
disturbingly inappropriate."



See
also
Masuku v Rex 1977
- 78 SLR 86 Mduduzi Sithole v Rex
CA
3/1987















[10]
As a general rule, the determination of an appropriate sentence lies
within the discretion of the trial Court. An appellate Court will
only interfere if the sentence imposed by the trial Court is
substantially different from the sentence it would have imposed, or
if the trial Court has misdirected itself or has imposed an improper
sentence.











[11]
In the case of
Musa
Bhondi Nkambule v Rex criminal Appeal No. 6/09 Ramodibedi, AC J
(as
he then was) stated:



"In
several of its decisions this Court has upheld the principle that the
imposition of sentence is a matter which primarily lies within the
discretion of the trial court. An appellate court will not generally
interfere with such a sentence unless there is a material
misdirection resulting in a miscarriage of justice. Put differently,
an appellate court will not interfere unless the sentence is so
grossly harsh or excessive as to warrant interference in the
interests of justice."







[12]
In this appeal, I must state that I do not find the sentence of four
(4) years imprisonment and six (6) years imprisonment, to run
concurrently, vitiated by irregularity or misdirection or
disturbingly inappropriate. There is also no other basis for
interfering with the said sentences.



[13]
In the result, it is hereby ordered that the I
s
Appellant's appeal against
conviction and sentence be and is hereby dismissed.







DELIVERED
IN OPEN COURT IN MBABANE ON THIS
....7th
DAY OF JUNE, 2011







M.M.
SEY(MRS)



JUDGE
OF THE HIGH COURT