IN
THE HIGH COURT OF SWAZILAND
CRIM.
CASE NO. 31/99
In
the matter between
REX
Vs
PATRICK
PAT LUKHELE AND THREE OTHERS
Coram
S.B. MAPHALALA - J
For
the Crown MR. M.
SIBANDZE
For
Accused 1 & 2 MR. Z. MAGAGULA
For
Accused 3 & 4 MR. MAGONGO
RULING
AT THE CLOSE OF THE CROWN CASE
(17/05/2000)
Maphalala
J:
Accused
no. 1 to 4 are charged with two counts of contravening the provisions
of the Theft of Motor Vehicles Act 1991 (as amended) as follows:
COUNT
1.
The
accused persons are guilty of contravening Section 3 (1) of the Theft
of Motor Vehicles Act (as amended) in that upon or about the 6th day
of May 1998 and at or near Mbabane in the District of Hhohho, the
accused persons acting jointly with a common purpose did wrongfully
and unlawfully steal one motor vehicle registration number SD 952 VM
a Toyota valued at E16, 000 - 00 the property or in the lawful
possession of Simon Ngwenya.
ALTERNATIVE
TO COUNT 1.
Accused
no. 1 and 4 are guilty of contravening Section 3 (1) of the Theft of
Motor Vehicles Act, 1991 (as amended) in that upon or about 12th May
1998, and at or near Hlathikulu area in the Shiselweni District the
said accused persons acting jointly and in furtherance of a common
purpose did receive a motor vehicle registration number SD 952 VM
knowing the same to be stolen.
The
accused persons pleaded not guilty to the charges. A total of seven
witnesses were led by the crown in support of the indictment. At the
conclusion of the crown's
2
case
an application was made by both Mr. Magagula and Mr. Magongo
representing accused no1 and 2, accused no. 3 and 4 respectively, in
terms of Section 174 (4) of the Criminal Procedure and Evidence Act
No. 67 of 1938 (as amended), for the discharge of the accused persons
on the ground that the crown has failed to establish a prima facie
case to place the accused persons on their defence. Mr. Sibandze for
the crown opposed the application advancing reasons for such
opposition.
Section
174 (4) in terms of which the present application has been made reads
as follows:
"If
at the close of the case for the prosecution the court considers that
there is no evidence that the accused committed the offence charged
or any other offence of which he might be convicted thereon, it may
acquit and discharge him".
This
section is similar in effect to Section 174 (4) of the South African
Criminal Procedure Act No. 51 of 1972. The test to be applied it has
been stated as whether there is evidence on which a reasonable man
acting carefully might convict. (See R vs Sikhumba 1955 (3) S.A. 125;
R vs Augustus 1998 (1) S.A. 75, not should convict (see Gascoyne vs
Pal and Hunter 1917 T.
P.
D
170 and R vs Stein 1925 A.D. 6).
Defence
counsel advanced a number of arguments in support of this application
and for the sake of brevity I shall fuse the arguments of both
defence counsel into one as they are in the main complimentary. I
shall only indicate points of differences as they relate to their
respective clients.
The
opening salvo by the defence is that the accused persons are charged
under the doctrine of common purpose but it has not been proved by
the crown that the accused persons conspired with each other in the
commission of the offence. Mr. Magagula for accused no. 1 and 2
contended that evidence which purports to implicate accused no. 1
with the commission of the offence comes from two sources that is the
evidence of PW4 Phillip Chumba and that of PW7 Sergeant John Dlamini.
PW4
was commissioned by accused no. 1 to spray paint a motor vehicle and
he did his job in broad daylight. There is no evidence that PW4 was
warned not to tell anybody that he had spray painted the motor
vehicle. It cannot be inferred that accused no. 1 knew that the motor
vehicle was stolen. There is also no evidence to show that accused
no. 1 knew that the motor vehicle was stolen but he proceed to
receive it in his possession. There was no suggestion that the said
motor vehicle being spray painted was hidden by PW4 from the public
to suggest that there was something wrong with the motor vehicle.
The
second attack on the evidence of the crown is directed against the
evidence of PW7 Sergeant John Dlamini where Mr. Magagula pointed out
three difficulties with his evidence. Firstly, that he deposed that
he warned the accused persons in terms of the Judges Rules, however,
contends Mr. Magagula the caution fell short of the requirement of
the law. In that the police officer failed to tell the court what
warning he gave to the accused persons. The court cannot surmise that
the caution was a proper caution. To support this contention the
court's attention was drawn to the case of Rex vs July Mhlongo and
another Criminal Case No. 185/92 (unreported case).
The
second difficulty highlighted by Mr. Magagula against the evidence of
PW7 is that the officer did not tell the court that the accused
freely and voluntarily pointed out
3
the
glasses to him (see the case of July Mhlongo and another (supra).
There is no indication or allegation that accused no. 1 and accused
no. 2 freely and voluntarily pointed out the glasses. Mr. Magagula
urged the court to view this evidence as inadmissible and thus of no
legal consequence.
The
crown cannot assume that anything that the accused will say in their
defence will cure the evidence of the pointing out. Thirdly, he
argued that PW7 failed to identify to the court the glasses, or
windows retrieved from accused no. l's homestead. The court cannot
surmise that they are the same glasses. The fourth and last
difficulty experienced by Mr. Magagula on the evidence of PW 7 is
that he admitted before court that it has been some time since the
commission of the offence that his memory was very bad. He could not
recall any pertinent dates or the sequence of events in a month as it
related to this case. That, therefore his evidence is not trustworthy
and should not be relied upon. To buttress this proposition I was
directed to the case of Rex vs Govu Dladla and others Criminal Case
No. 168/98.
When
dealing with accused no. 2 Mr. Magagula pointed to the evidence of
PW6 2639 Constable M. Ndlangamandla who told the court that he
stopped a certain motor vehicle driven by accused no. 2 and ordered
that it be driven to the police station at Hlathikulu. That is all
that is said in respect of accused no. 2 when he was asked who was
the owner of the motor vehicle he said it belonged to accused no. 4.
The evidence of Ndlangamandla does not prove that accused no. 2 stole
the motor vehicle which is the subject matter of this case. There is
no suggestion that accused no. 2 knew that the motor vehicle was
stolen by the way he was driving it.
Mr.
Magongo for accused no. 3 and 4 dealing with accused no. 3 contended
that the only evidence that purports to implicate him is that of PW6.
That accused 3 was seated in the motor vehicle. The court has to
answer whether this evidence is prima facie that he stole the motor
vehicle.
As
regard accused no. 4 the crown has not proved common purpose as per
the indictment (see S v Nkwanyane 1978 (3) S.A. 404. On the question
of pointing out he argued on the same lines as Mr. Magagula did. He
urged the court to dismiss the evidence of pointing out in view of
the dicta in the case of Alfred Shekwa and another (supra).
Mr.
Magongo further challenges the ownership of the motor vehicle that it
cannot be said with certainty that the motor vehicle belonged to PW1
the complainant. He further argued that accused no. 3 and 4 cannot
even been called to their defence in respect of the alternative
charge. It was also argued that there is no evidence to show that any
of the accused persons were in Mbabane on the day of the theft at New
Checkers.
The
crown as represented by Mr. Sibandze argued per contra. He argued
that there is sufficient evidence that portions of the motor vehicle
which was exhibited before court belonged to the complainant's (PW1)
motor vehicle. The motor vehicle was found in the possession of
accused no. 1 and accused no. 2. If they did not steal the motor
vehicle where did they find the portion of the motor vehicle? Accused
no. 1 took the police to his home where he pointed out other parts of
the motor vehicle, which was stolen from the complainant. Accused no.
4 took the police next to Mkhondo river to show them the bakkie of
the motor vehicle stolen from the
4
complainant.
Mr. Sibandze submitted that proof beyond a reasonable doubt does not
mean proof beyond a shadow of doubt. The body of the chassis belonged
to the complainant. The manner in which the accused persons dealt
with the motor vehicle showed that it belonged to them. The engine
number had been tampered with. The visible numbers of the engine
number are traceable to the original number. PW1 pointed out things
which are peculiar to his car. The identification of the bakkie is
sufficient. Further in terms of Section 4 of the Act a presumption is
created that the onus of proof shift to a person who is found in
possession of a stolen motor vehicle to show that he did not commit
the theft. Accused no. 1 and 2 were found in possession of the motor
vehicle and when the police asked who the owner was. They left the
motor vehicle at the police station and disappeared.
Mr.
Sibandze during the heat of his submissions when quizzed by the court
as to whether the crown in the face of the evidence had proved common
purpose and also how was the court to treat the evidence of PW7 that
of pointing out. Mr. Sibandze conceded that the crown has not proved
that the accused persons were acting in concert and thus the
indictment on both the main count and the alternative count cannot
stand, however, the accused person may be found guilty of theft
simpliciter which according to the crown is a competent verdict in
the circumstances. On the evidence of pointing out deposed by PW7 the
crown also conceded that in terms of the law that evidence is
inadmissible.
On
the evidence of common purpose the crown told the court that the
witness who was to be introduced as an accomplice witness who was to
link each accused to the commission of the offence died last year.
These
are the issues before me. I have considered the evidence of the crown
in view of Section 174 of the Criminal Procedure and Evidence Act (as
amended). I have also considered the submissions made by both sides.
It is without question that the complainant had his motor vehicle
stolen on the night in question. It is common ground that both counts
cannot be sustained in view of the fact that the crown on its own
admission has not proved common purpose. This state of affairs has
been caused by the death of one of the crown witnesses who has dealt
a death knell to the crown's case.
The
motor vehicle which is the subject matter of this case as we have
seen on several occasions when we conducted an inspection "in
loco" has been mutilated beyond description. However, it appears
to me that a large portion of this motor vehicle belongs to the
complainant who I am convinced has shown to the court peculiar marks
which he could identify his motor vehicle with. It is further common
ground that the evidence of pointing out made by accused persons as
conceded by the crown is inadmissible. In the case of Alfred Shekwa
and another vs Rex Criminal Appeal No. 21/1994 (unreported). A
warning had been given in terms of the Judges Rules to an accused by
a police officer subsequently the accused pointed out certain items
linking him to the crime which he was charged to another police
officer, detective Sergeant Mamba, who did not give him a similar
warning prior to the pointing out to be inadmissible. Browde J
A
who gave the judgement of the court referred to the case of July
Petros Mhlongo and others vs Rex Case No. 155/92 where this court
approved the decision of the Appellate Division in S vs Sheehama 1991
(2) S.A. 860 (AD) where the following was expressed:
5
"A
pointing out is essentially a communication by conduct and, as such,
is a statement by the person pointing out. If it is a relevant
pointing out unaccompanied by any exculpatory explanation by the
accused, it amounts to a statement by the accused that he has
knowledge of relevant facts which prima facie operates to his
disadvantage and it can thus in an appropriate case constitute in
extra-judicial admission. As such, the common law, as confirmed by
the provisions of Section 219 of The Criminal Procedure Act 51 of J
997, requires that it be made freely and voluntarily".
For
a pointing out to be made freely and voluntarily, a warning to the
accused in terras of the Judges Rules would be necessary. In the case
in casu the warning given by PW7 was lacking in this respect and thus
renders all the evidence, which might have implicated the accused
persons with the commission of the offence inadmissible. The crown in
any event conceded the shortcomings of PW7's evidence. The court may
perhaps be left with evidence which tends to associate the accused
with the said motor, but the court has to be satisfied that these
remaining pieces of evidence prove a "prima facie" a case
to put the accused to their defence. It appears this is not possible
if one has regard to the totality of the crown evidence. The two
counts the accused persons are faced with they cannot be called to
their defence as the crown itself has conceded. Further for the
presumption in terms of Section 4 of the Act to come in to operation
the crown need to have laid a "prima facie" case and I
agree with Mr. Magagula for accused no 1 and 2 in his submissions in
this regard. On the point of finding the accused guilty of the
competent verdict of theft it appears to me that the Act itself has
created competence verdicts for offences under Section 3, 8. Hand
these are spelt out in Section 5 (1) (a) - (d). The evidence of the
crown in the present case cannot be slotted in any of the listed
competent verdicts.
Finally,
it appears to me that the crown case was torn asunder by the evidence
of the witness who had died who might have linked the accused persons
with the commission of the offence. In the circumstances I rule that
the crown has not prove a prima facie case in terms of the Criminal
Procedure and Evidence Act (as amended) and they are therefore, in
law, entitled to their discharge.
As
I have found earlier on that the bulk of the motor vehicle belongs to
the complainant in law he is entitled to its return.
S.B.
MAPHALALA
JUDGE
