SWAZILAND
HIGH COURT
Rex
vs
Robert
Magongo
Cri.
Trial No. 19/2000
Coram
SAPIRE, CJ
For
Crown Mrs. M. Dlamini
For
Defence Mr. C. Ntiwane
JUDGMENT
(16/10/2000)
The
accused in this matter has been found guilty on three counts. The
first related to the theft of 15 bags of dagga from police cells at
Malkers. The 2nd count, which is count 3, contravention of Section
12(1)(b) of the Pharmacy Act of 1929 as amended by Pharmacy Amendment
Act no. 11 of 1983 and the 3rd count was a contravention of Section
12(2) of the Pharmacy Act 1929 as amended.
The
sentences which have been imposed are set out in the Notice of Appeal
which has now been filed.
On
count 1, three (3) years imprisonment without the option of a fine
and a further fine of E15 000.00 in default of payment of which a
further 2 years imprisonment.
Count
3 is E15 000.00 in default of payment thereof imprisonment for 2
years, a sentence to run concurrently with the one on count 1 and
2
Count
4 a fine of E15 000.00 in default of payment of which imprisonment
for 2 years.
I
see in the Notice of appeal that it is said the sentence on count 4
is to run concurrently with the one in count 3. I do not think that
is correct. I believe that as was my intention the sentence imposed
in respect of count 4 was to be consecutive. In any event the record
will speak for itself.
This
application for bail pending appeal is opposed. The offences of which
the accused has been found guilty do not involve violence and I
accept that his release from custody would not pose a threat to the
physical well being of anyone. If it were possible to allow him bail
this consideration would weigh heavily in his favour.
The
first question which has to be asked is whether, as 2nd and 3rd
counts, that is the contraventions of the Pharmacy Act are offences
which are mentioned in the schedule of the Non-Bailable Offences
Order, bail is possible. This legislation provides that if an accused
is charged with these offences, the court is not permitted to admit
him to bail. There is no specific indication in the Order whether it
is bail pending the trial of a matter or whether it includes bail
after conviction pending appeal. The order reads that if the
applicant is charged with the offence described in the schedule bail
may not be granted. Originally the order referred to a charge
involving those referred to in the schedule but this has now been
amended to refer to an applicant for bail who is "charged"
with those offences.
It
has been argued that once the accused has been convicted he is no
longer charged and the order does not apply. It all turns under the
meaning of the word "charged" There has been judicial
interpretation of this word. In the headnote to Sanderson v
Attorney-General, Eastern Cape 1 the following appears.
"The
word 'charge' was ordinarily used in South African criminal procedure
as a generic noun to signify the formulated allegation against the
accused, as it is defined in s 1 of the Criminal Procedure Act 51 of
1977. As a verb, 'charge' bears no defined or precise meaning. There
are two possible interpretations. It could be interpreted very
narrowly to11998 (2) SA 38 (CC)
3
mean
the formal arraignment or something tantamount thereto or, broadly,
to mean no more than an intimation to the accused of the crime
alleged to have been committed.
The
Court declined to decide where 'charged', as used in s 25(3)(a), fell
as it made no significant difference to the matter in casu "
The
word may be read as referring to the form of charge itself but more
logically to the whole procedure of bringing an accused person before
court and the levelling of accusations against him involving
particular offences.
There
is considerable force to the argument that in interpreting the words
of the order in the sense that once the applicant is a convict he is
no longer charged. On the other hand there is perhaps more force to
the argument that if it was the intention of the legislature that the
applicant for bail was to be refused bail before and pending trial
then this intention would be frustrated by granting bail pending
appeal against a conviction.
However,
I find that I do not have to decide this point. In relation to the
two convictions under the Pharmacy act, the applicant has been given
a sentence, which allows him to pay a fine. He has said in his
affidavit that he is a registered owner of a certain property
described as Lot No. 20 remainder situate Mvulo Road Pigg's Peak.
That property is presently leased out and his family receives E850.00
in respect of rentals to subsidise his wife's salary. He says in the
event that the Honourable court is inclined to admit him to bail such
property can be used as security. If that is so, there is no reason
why the property could not be used to raise the money to pay the
fines, which have been imposed. There is no reason why there should
be security rather than the payment of the fines.
What
remains is what I consider the most serious of the three convictions,
and that is the theft. The primary question to which I have to put my
mind is whether there is any prospect of success on appeal., and
secondly whether there is some real prospect that the applicant will
not present himself for interment should he fail in his appeal
against the conviction on this count.
I
have considered this again ever since the application was argued.
There is judicial appreciation that it is difficult for a judge who
has found the accused to be
4
guilty
beyond any reasonable doubt, to have to make the intellectual
exercise of considering whether another court could come to a
different conclusion. It is an exercise, which I have had to carry
out and the evidence in this case is such that in my view there is
insignificant prospect of success on appeal. I cannot say that the
appeal is a foregone conclusion but I do not see any prospect of the
appeal court coming to a different conclusion to that to which I have
come.
The
evidence against the accused person is strong. There is, as I said in
my judgment on the issue, the evidence of Mavuso whose evidence was
credible and who was strongly corroborated as to his account of what
happened after the dagga had been removed from the cell. He is
corroborated by independent circumstances linking the accused with
the presence of dagga at the house at Motjane and in my view there
can be little prospect of success in regard to this conviction. The
accused's version, necessarily involving a conspiracy to which all
the witnesses was party is fatuous.
That
being so I do not have to speculate on the prospects of the applicant
absconding.
Accordingly
the application for bail is dismissed.
S.W.
SAPIRE,
CJ
