IN
THE HIGH COURT OF SWAZILAND
CRIMINAL
APPEAL NO.25/2000
IN
THE MATTER BETWEEN:
FELIX
TEMBE
VS
REX
CORAM
: MATSEBULA J
:
MAPHALALA J
FOR
THE CROWN : MRS. M. DLAMINI
FOR
THE ACCUSED : IN PERSON
JUDGMENT
08/05/2000
Accused
was charged before a Magistrate court of contravening with Section 11
of Theft of Motor Vehicle Act No. 16/91. The Act reads as follows:
"Any
person who unlawfully possesses or manufactures or causes to be
manufactured a key, stamp, book or other document or gadget used or
likely to be used in the commission of an offence under this Act,
commits an offence and is liable on conviction to a fine not
exceeding E10,000.00 or an imprisonment not exceeding five (5)
years."
Accused
was co-charged with another person against whom (second accused) the
charge was withdrawn and accused appearing before us pleaded guilty.
The
evidence was led and accepted by the learned Magistrate. His legal
rights were explained to him and he chose to give evidence on oath.
He does not dispute that this key which was manufactured is not a
proper key for a motor vehicle and that it was found
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amongst
his tools in a toolbox. He stated that these were many tools that he
had and amongst them was also this key which was manufactured and; he
was subsequently charged. He was convicted and sentenced to a payment
of a fine of E3,000.00 (three thousand Emalangeni) or in default of
payment to undergo an imprisonment for three (3) years.
He
noted an appeal and we have confirmed this morning, from him the
appeal is aimed at, according to him, the severity of the sentence.
He states his reasons why he feels the sentence is severe and one of
them being that he says he has a child that is attending school.
According to him, he says the sentence induces a sense of shock.
In
my view, that is incorrect because the maximum sentence which can be
imposed is an amount of E10,000.00 or in default of payment, a period
not exceeding a period of five (5) years. The learned Magistrate only
fined him E3,000.00 or in default of payment three (3) years.
We
have drawn the accused's attention to Section 14(2) of the same Act
which states that no sentence or part of the sentence under this Act
may be suspended. In my view, therefore, I find that there is no
merit in the appeal against the sentence. He was lucky to have come
out with a very light sentence the learned Magistrate imposed. In my
view therefore I dismiss the appeal against conviction and sentence
and I so order.
J.M.
MATSEBULA
JUDGE
I
agree:
S.B.
MAPHALALA
JUDGE
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