Court name
High Court of eSwatini

Ndzimandze v Rex () [2000] SZHC 3 (01 January 2000);

Law report citations
Media neutral citation
[2000] SZHC 3
Coram
Matsebula, J









IN
THE HIGH COURT OF SWAZILAND


CRIMINAL
APPEAL NO.5/00


In
the matter between:


THAMIE
NDZIMANDZE APPELLANT


AND


REX RESPONDENT


CORAM :
MATSEBULA J


:
MAPHALALA J


FOR
THE APPELLANT : MR. MABILA


FOR
THE RESPONDENT :


JUDGMENT


Matsebula
J:


The
appellant was co-charged with two others by a Magistrate in Manzini
of theft of E140,000.00 the property of Standard Bank - Swaziland. At
the commencement of trial in the court a quo the charge was withdrawn
against accused no.3 because the Crown needed to use her as an
accomplice witness. The appellant and accused no.2 pleaded not guilty
to the charge. The appellant was represented by Mr. Mnisi and Mr.
Sigwane represented accused no.2.


An
application was made at the close of the Crown case in terms of
Section 174(4) of the CRIMINAL PROCEDURE AND EVIDENCE ACT AS AMENDED.
Thelearned Magistrate acquitted and discharged accused no.2 in terms
of this application. The appellant was called to his defence. The
appellant was eventually convicted as charged and sentenced to ah
imprisonment for seven years, half of which was


2


suspended.
It is against this conviction and sentence that he is appealing. He
first noted an appeal on the 1st September 1999. The grounds of this
appeal are rather profusely repetitive and confused. They refer to
contradictions where there are no contradictions. The appellant has
itemised ten points inter alia, he is also challenging the fact that
the learned Magistrate failed to consider granting the appellant an
option of a fine and that the sentence imposed by the learned
Magistrate was harsh and causes a sense of shock.


At
the hearing of the appeal Mr. Mabila appeared for the appellant and
handed in heads of argument. With the greatest of all respects, Mr.
Mabila's heads of argument could not advance the appellant's case any
further than the appellant did. Mr. Mabila too referred to
contradictions which were either so immaterial to the facts of the
case or not there at all. In dealing with a criminal trial one should
always avoid the pitfalls of dealing with factors in isolation. One
should consider the evidence in its totality before making a finding.
This in my view is what the learned Magistrate did.


I
will proceed and deal with the facts revealed at the trial in the
court a quo and accepted by the learned Magistrate. In his reasons
for judgment he states that the evidence of PW1 who was described as
an accomplice witness should be approached with extreme caution, (see
page 57 of the typed record of proceedings.)


The
learned Magistrate accepted PWl's evidence as to the meeting between
her, accused no.1, and no.2 and about the business broached by
accused no.l opening an account at the bank.


Following
this idea accused no.l arrived in Swaziland in the company of Nomsa
and Dorcus and accused no.1 met them and elaborated discussions on
how Nomsa would open an account and deposit E7, 000.00 followed. The
arrangement materialised on 3rd March 1999. Subsequently accused no.l
instructed Nomsa how to open the account. Accused no. 1 further
instructed Nomsa how she was to obtain authorisation first in respect
of the E64,000.00 and thereafter alter the figures

to
reflect a withdrawal of E140, 000.00 instead of the E4, 000.00 that
had been authorised. Nomsa was then to present the withdrawal slip to
accused no. 1 who was a teller at the bank.


3


PW1's
evidence was corroborated by PW3 in so far as the encashment of E140,
000.00 that had not been authorised. Accused had referred the
withdrawal of E140, 000.00 to the authorised officer, PW5. After he
had paid out this amount to the customer and allowed the customer to
leave.


The
learned Magistrate also accepted PW5's evidence Owen Nxumalo. PW5 had
authorised a withdrawal of E4, 000.00 and not E140, 000.00. PW5
noticed the alteration in the figure of E140, 000.00 and it was clear
that the words had been tempered with.


The
learned Magistrate also accepted the evidence of PW6 David Mathonsi
as corroborated and accepted that Mathonsi received E40, 000.00 and
that the question of how much accused no.2 received was never pursued
at the court a quo. What was perceived as a contradiction by Mr.
Mabila therefore could be a misleading statement as there is no
evidence as to how much accused no.2 kept.


It
was accepted as a fact that there was a constant communication
between accused no.1 and PW6.


Accused
no.1 referred to women from South Africa who came and a theft was
committed. He, accused no.1 needed PW6 to cleanse him so that he
might escape the consequences of this theft. Accused no.1 asked
accused no.2 to accompany PW6 to South Africa to go and retrieve the
money. Accused no.2 phoned accused no.1 in the presence of PW6 and
recounted problems she was encountering in meeting the people who had
the money. Eventually accused no.2 met the people and some amount was
handed over to her. They returned to Swaziland and the rest of the
money was handed back to accused.


It
is true that Mr. Mabila did not represent the appellant in the court
a quo. But Mr. Mnisi who represented him never challenged the meeting
by accused no.l with the women at the Lodge. The Crown witnesses have
corroborated one another of the conspiracy which was accused no.1's
original idea.


The
learned Magistrate deals with the caution a trier of facts should
exercise in dealing with accomplice witnesses (see page 57) of the
typed record. In my view he


4


exercised
caution and found that there was corroboration of the witnesses to
justify a conviction.


I
can find no misdirection in so far as conviction is concerned. Mr.
Mabila did not address us on the matter of sentence. However, as the
appellant had in his notice of appeal indicated that the sentence was
harsh, I should say there is absolutely no merit in that complaint
against sentence. The appellant was lucky to have part of his
sentence suspended.


In
the result, I am of the view that both the conviction and sentence
should be confirmed and the Magistrate's finding should not be
interfered with.


J.M.
MATSEBULA


JUDGE


I
agree:


S.B.
MAPHALALA


JUDGE