THE HIGH COURT OF SWAZILAND
the matter between:
ORDER NO.27/79 DISTRICT OF LUBOMBO
ON 28th DECEMBER, 1979 REVIEW CASE NO.172/79
Accused in this case was convicted on two counts of stock theft as
defined in Section 2 of Act 6 of 1904. The two counts were taken as
one for the purposes of sentence; and the Accused was fined E400. or
in default of payment to 2 years imprisonment. The Accused was a
first offender aged 47. Count 1 involved the theft from one Msweli
Mathebula of two head of cattle valued at E340 (E294 according to the
charge sheet) on 29th August 1979; and Count 2 involved the theft on
the same day of two head of cattle valued at E280, the property of
one John Mamba. In each instance the Accused had sold the cattle
which he had stolen.
Accused stated in evidence that he thought all the cattle belonged to
Msweli Mathebula. He said that Mathebula's cattle ate the Accused's
cotton or destroyed 35 acres of his cotton field. He vent to
Mathebula to report this, and Mathebula threatened to stab him with
some spears. He then reported to the charge office but the police
said that Mathebula had not stabbed him so there was no case. He then
tried to get removal permits so that he could impound the cattle, but
he failed. He also went to the Agricultural officer to get him to
examine his fields of cotton, but the officer said there were no
exhibits as all was devoured. He said . he went to Mathebula's chief
and reported the matter
him, but the Chief had failed to try the case to date. He said he
felt frustrated and took all four head of cattle and sold them . In
mitigation he said he was provoked; he felt very angry and had
retaliated in this manner; he failed to get solace from the Police or
from the Chief's Court.
of this evidence was controverted by the Crown.
requested the Magistrate to furnish reasons for his sentence, and
pointed out that it appeared to be heavy, having regard to the fact
that the Accused was a first offender and was acting (even though
mistakenly and unjustifiably) under some sort of claim of right.
his reasons for sentence the Magistrate states that the Accused has
12 cattle and is in a position to pay the fine. He says that stock
theft is rife in his area and warrants salutary sentences if this
evil is to be curbed. He says he concurs in the view that the
Accused's "claim of right" was mistaken and unjustified but
adds with the greatest respect that in his opinion it was grossly
unreasonable. He said he did not think that the accused thought he
was acting bona fide in selling the complainant's cattle. He then
referred to the decision in R. v, de Kock, 1951 (2) S.A. 342 (T), in
which the Appellant had taken a dressing table and contents valued at
£70 which he intended to keep indefinitely as security until he
was paid a debt of £11.
It was held that the appellant was correctly convicted of theft. In
regard to sentence the presiding judge said "The sentence was
£20 or one month's imprisonment with hard labour suspended for one
year on condition that the Accused be not convicted of an offence
involving dishonesty. The appellant might very well have been
sentenced to a substantial period of imprisonment."
Magistrate closed his reasons for sentence with the observation "I
by no means wish to letter his Lordship's discretion should the
Accused win his Lordship's sympathy; I can only humbly add that he is
an extremely fortunate man".
of this nature are quite uncalled for. They only antagonise the Court
and serve no purpose in advancing the
Magistrate further said that in de Kock's case the appellant had not
sold the goods seized but only held them as security. In my opinion
the Magistrate has misdirected himself in regard to sentence. He
has glossed over the personal circumstances of the Accused and the
extreme frustration which the Accused must have suffered in
endeavouring to obtain suitable legal redress. In so far as the
Magistrate founds upon unreasonableness it appears to me that he has
overlooked the fact that in such cases as R. v. Geddes, 1964(4) S.A.
it was said that it appeared to be settled law that reasonableness is
not required in "claim of right" cases. It has been held
that the Accused should have acted bona fide; but in my view this
element should not be overstressed when one is dealing with an
unlearned African labouring under a genuine sense of grievance., It
is, moreover, important to bear in mind that we are here concerned
with the question of mitigation, and not with the question whether a
crime was committed.
regard to the consideration that the Accused can afford to pay the
fine imposed, I point out that this factor cannot justify an
was said in S. v. Zinn 1969(2) S.A. 537 (A.
at p. 540 G that in imposing sentence the Court must consider the
tirad consisting of the crime, the offender and the interests of
society. In the present case the Magistrate rightly took into account
the crime and the interests of society; but in my view he had far too
little regard for the circumstances of the offender, the Accused.
should mention in conclusion that although no compensatory order
was made at the trial, the Accused will be liable to pay compensation
to the complainants, subject to any counterclaim for damage to
the Accused's cotton fields.
convictions are upheld; but for the sentence on the two counts taken
as one there is substituted a fine of E100
in default of payment imprisonment for six months.