THE HIGH COURT OF SWAZILAND
the matter between:
ORDER NO.25/79 DISTRICT OF HHOHHO
ON THE 3rd DECEMBER, 1979 REVIEW CASE NO.168/79
two Accused in this case are peregrini in Swaziland. They were each
convicted on five counts of car theft and were sentenced to nine
months imprisonment on each count. They "ere first offenders.
Magistrate in submitting the case for review has stated that he had
it in mind to impose heavier sentences . than he has done, but that
he did not do so because of my decision in R.
Nxumalo and Another, Review No.22 of 1977, by which he (correctly)
considered himself bound.
that case I said, in relation to the same Magistrate, "He said
that this offence (a planned housebreaking and. theft) is very common
in Mbabane and requires deterrent sentences to stamp it out. This was
a legitimate consideration to take into account; but it loses
some of its force in the light of the fact that No.2 Accused in the
present case was not a member of the Swaziland community but was a
refugee from South Africa who was visiting Swaziland en route for
Nigeria where he was due to take up a scholarship".
Magistrate has invited me to reconsider my decision in Nxumalo's
case, supra, in the light of the decisions in
Hanyesa, 1975(4) S.A. 846(RAD); S,v. Cassim, 1976(4) S.A. 29(R A D);
Mothibe 1977(3) S.A. 825 (A.
The question in a nutshell is whether the Accused as peregrini,
should be treated on exactly the same basis as incolae would be
treated. It may be premised that car theft is rife in Swaziland and
is very frequently committed or at least facilitated by
peregrini from the Republic of South Africa.
do not derive much assistance from the case of S.
Manyesa, 1975 (4) S.A. 846 R.
This was a case of smuggling goods in contravention of the Rhodesian
Customs and Excise Act. The Court gave public warning that, as had in
the past been threatened by the Magistrates, such contraventions
might attract a prison sentence even in the case of first offenders.
The Court in that case reduced the Magistrate's sentence of six
months imprisonment to a fine of 8400 or in default of payment to a
fine 6 months imprisonment, and in addition six months
imprionment which was suspended on certain conditions. The Court's
reason for doing this was that it was not satisfied that the
appellant had received the magistrates' warning. The appellant in
that case was a driver of heavy transport vehicles; but the report
does not indicate whether or not he was a peregrinus in Rhodesia. I
may point out that if the reason why the Court was not satisfied that
the appellant had received the Magistrates' warning was that it
considered that he was or might be a peregrinus, this tends to
militate against the contention that peregrini and incolae should be
treated on an equal footing.
matter was far more pertinently raised in S. v. Passim 1976 (4) S.A.
also a case of smuggling. There Beadle A.
after referring to and endorsing Manyesa's case, supra, said at p. 30
H, "So there is not the slightest doubt that, had the appellant
been an incola, the reasoning in Manyesa's case would have applied
and the Court could not have done otherwise in the circumstances
than to have imposed a sentence of imprisonment. Mr. Wilmot has
argued, rather ingeniously, that because the appellant is a
peregrinus he is unlikely to have heard of this warning issued in
Manyesa's case, supra,
therefore he should be treated as if he were an ncola ho committed
the offence before the warning had been given. There are tiro answers
to this arguement. In the first place, if the appellant had never
heard of the warning, it is equally probable that he had never heard
of the custom which had apparently developed in Rhodesia of not
imposing prison sentences on first offenders, so the reasoning in
Manyesa's case would not apply to him. But there is a further reason
Why he should not
treated differently from an incola. If a peregrinus comes into a
foreign country he must be expected to obey the laws of that country,
and, if he breaks those laws he must be expected to be treated like
any other incola. He must not expect that because of his position as
a Peregrinus he is in a privileged position and (that) he could be
much more leniently dealt with than an incola would be in similar
circumstances. I think, therefore, that this case should be
approached in exactly the same fashion as if the appellant were an
incola. That being so, I think the sentence of imprisonment was an
appropriate punishment for this offence.
come now, however, to deal with the quantum of sentence, The amount
involved was not very great and the appellant has already suffered
quite a substantial penalty by the forfeiture of the watches. It
seems to me in these circumstances the sentence of five months'
imprisonment is severe enough to justify interference by this Court."
the result the sentence was reduced from five months imprisonment to
five months of which four months were suspended.
would remark, with respect, that I do not find the learned judge's
one reason for reducing the sentence - namely the "substantial
penalty" (why, incidentally, substantial if the amount involved
was "not very great"?) incurred, by the forfeiture of the
watches - very cogent, because it loses sight of the fact that the
appellant was bound to suffer this forfeiture, whatever the sentence
regard to the learned judge's first reason for rejecting counsel's
submission, I find this, again with respect, to be somewhat specious
and unconvincing. It is
so it appears to me, a question of claiming to be treated as a first
offender and therefore not to "be sent to prison; it is rather a
question of being given a lesser sentence than would be imposed on an
is more substance in the learned Judge's second reason for rejecting
counsel's argument. But there is authority pointing the other way, to
which the learned judge did not refer. In the case of S. v. Naicker,
1967 (4) S.A. 214- (N), Milne J.P. said, at p. 225-6, "Even if
the appellant had proved that he did not know of the relative
statutory provisions -—-— this would not, in my view, have
absolved him from responsibility for complying with them. That would
be a case of mere ignorance of the lav, which might justify
mitigation of punishment but not an acquittal,,"
to the like like effect 10 Halsbury, 3rd edition page 284, paragraph
525: "Ignorance of law cannot be set up as a defence even by a
foreigner, although it may be a ground for the mitigation of
S. V. Mothibe, 1977 (3) S.A. 823 (A.D.) at page 828 F
said, "There is much to be said for the view that the fact that
appellant is a non-citizen does not mitigate the crime. Whether that
fact in the circumstances of this case is an aggravating factor is
doubtful, particularly as appellant was due to leave the
Republic on 31st August 1976
may well be that the imposition of a severe sentence on a
non-citizen, may have a greater deterrent effect on other foreigners
than a sentence which would normally be imposed on a citizen,. Even
assuming that to be so one must not overstress this aspect."
is to be noted that the Court reduced the sentence imposed on the
appellant from 4 years to 18 months' imprisonment.
would make two observations in regard to the judgment of Galgut A.
Firstly, he expressed himself in very guarded language, and did not
decide that the fact that the appellant was a peregrinus does not
operate to mitigate the
Secondly, we are in the present case not concerned with the question
whether a heavier sentence should be passed on a peregrinus than upon
a incola. We are concerned with whether the same or a lesser sentence
should be passed upon him.
the natter my best consideration I find myself unable to say that my
judgment in R. v. Nxumalo and Another, supra, requires revision. The
fact that an accused is a peregrinus may entitle him to some
consideration in regard to sentence on that ground. It is one of the
factors to betaken into account when passing sentence, along
with other factorso But I do not think it would be correct to say
that no regard at all should be had to it.
should mention, in conclusion, that in my opinion the sentence of
nine months imprisonment on each of the five counts was perfectly
adequate and that it would not call for an increase.
convictions and sentences are confirmed.