Crim. Case No.41/2000
In the matter between:
OBERT SITHEMBISO CHIKANE
MUZI RICHARD DLAMINI
CORAM : MASUKU J.
For the Crown : Mrs M. Dlamini/Mr N.M. Maseko
For Accused 1 : Mr B. Sigwane
For Accused 2 : Mr D. M. Mamba
10th March 2003
There were initially two accused persons indicted with a number of offences, ranging from murder, robbery, forgery and transgression of the Immigration laws. The Court has since been informed and it is confirmed that MUZI RICHARD DLAMINI, the Second Accused died in custody during the defence case. In the premises, Mr Mamba decided to withdraw his services and this judgement shall be directed to the remaining accused person. Reference shall however be made to the deceased accusedâ€™s evidence in so far as I may deem it necessary and appropriate. I do however order an autopsy report regarding the cause of his death and the report of the inquest surrounding his death must be filed with the Registrar by the Correctional Services Department for my perusal and further directives. This is to be done within thirty days from the date hereof..
On the 16th August 2002, I delivered a Ruling on an application in terms of the provisions of Section 174 (4) of the Criminal Procedure and Evidence Act, 67/1938. At the end of that Ruling, I came to the conclusion that Accused 1 had a case to answer in respect of Counts 3,4 and 5, being two counts of robbery and one of illegal possession of a firearm. The particulars of the indictment were fully set out in my aforesaid Ruling and the evidence led in respect of each was covered in the said Ruling. For a proper reading of the whole case, it is necessary that the Ruling and this judgement be read as one.
It is worthy of note that Counts 3 and 4 are somewhat interlinked, as observed in the Ruling. It will therefor be necessary not to deal with them in truncated form. In this regard, I will briefly advert to the evidence adduced by the Crown, the defence, analyse the effect thereof and thereafter return a verdict on each of the outstanding Counts.
Counts 3 and 4
Count 3 was the robbery of Mandla Weston Phiri, which occurred at Nkhungu area, Hhohho region on the 3rd September 1999. During that robbery, a Toyota Corolla 1.6. Sedan, valued at E40,000.00 was taken from the said Phiri, together with other items, including money, clothes and other personal effects of the complainants.
It will be recalled that Weston Mandla Phiri (PW 11) testified that he was travelling from Johannesburg in the aforesaid described motor vehicle, which bore registration number JJH 296 GP. He was in the company of one Glorine Mbuyisa (PW 13) and some two children. They entered Swaziland at or about 21h30 through the Ngwenya border. When they had entered Swaziland, the motor vehicle sustained a puncture next to a level crossing. PW 11 attended to it. When he was about to finish, some two men approached and offered some assistance to PW 11 and which he politely declined as he was almost through.
The same men returned shortly thereafter and one fired a firearm next to PW 11 whilst the other fired next to PW13. One of these assailants put a firearm on PW 11â€™s head while the other put it on PW 13â€™s ribs. They were both led to a nearby bush and were there shoved to the ground. One of the men asked if PW 11 had any money, to which PW 11 answered in the negative. He was searched and in his wallet was about E480.00, a Swaziland driverâ€™s licence, bankcards and a Swazi Med card.
Thereafter PW 13 was thrown on top of PW 11 and they were calling her a prostitute. The children started crying at this stage. One of the assailants went to the motor vehicle, took out the children and brought them to where PW 11 and PW 13 were. The other remained guard over PW 11 and 13 and the children whilst the other went to tighten the nuts on the wheel. He picked up the luggage which had been taken by PW 11 from the vehicle. All he left on the ground was the punctured tyre. He then called his colleague and they drove off in PW 11â€™s vehicle.
PW 11 testified further that in the boot was a big black bag with the childrenâ€™s clothes, PW 11â€™s trousers, a Laptop Computer. Other items in the vehicle were car mats, both carpet and rubber and an imperial First Aid bag. PW 11 testified that he was later called to identify some of the items recovered, including the mats wheel caps, speakers and the motor vehicle itself.
PW 11 also testified that if his memory served him well, he recalled that PW 13 had some money in the Pula currency, about 28 Pula. She also had about R 900.00 and a black hand bag and the childrenâ€™s shoes. PW 11 testified further that he could not see the appearance of their assailants since it was dark. All that he could say was that one was shorter and bigger in build, while the other was taller and much thinner. PW 11 pointed out some items that he identified in Court as having been in the vehicle when it was taken from them.
PW 11 was cross-examined in relation to the wheel caps, rubber mats, carpet mats and the first aid kit. PW 13 also testified and her testimony by and large conformed to PW 11â€™s. It was her evidence that in her purse, she had over R800.000 and 35 Pula together with some Tswana coins (Tebe), the amount of which she could not recall. One of the men took her purse which contained the amounts referred to above. She also lost a company Laptop (black in colour), a navy blue blazer, a black hand bag with different items including ball point pens, highlighters; childrenâ€™s shoes, a bunch of keys for a BMW vehicle and house keys, Vaseline, Lip Therapy and a pen written Table Bay.
It was her evidence that she went to identify the following items at the Police Station, black shoes, black bag and the highlighters, Vaseline, a Lip Therapy, pens and keys, a pair of scissors and a yellow to gold comb. She also testified that she was called at Matsapha to identify her wallet which had apparently been found at Motshane. The business cards found in it helped in locating her. It was her evidence that she only found the cards and driverâ€™s licence in the wallet. The money was missing.
PW 12 on the other hand testified that he was on duty in Pigg's Peak where he had mounted a speed trap at the Mhlatane High School junction on the 7th September 1999. At around 11h00, he received a message of robbery which was committed in Mbabane and that a white Corolla Sedan had been used by two robbers. It had a registration ending with MP. Around 12.10pm, a white BMW motor vehicle exceeded the speed limit and it was stopped.
There were two people in the motor vehicle. PW 12 asked the driver to open the boot and he said it does not open. After PW 12 prevailed on the accused, he eventually opened it. In the boot was a leather bag with some clothes, and a moneybag with notes. Accused 1 was driving the vehicle. Under the driverâ€™s seat were found some Toyota car keys. In the cabby hole were found three (3) passports two South African and a Swaziland travel document. Each of the two passengers were carrying a Swaziland travel document and some money on their persons.
Accused 1 introduced himself as Richard Dlamini but on looking at the passport, PW 12 realised that he was in fact Obed Chikane. On his person was found E105.50 and 35 Pula. He was also carrying a cell phone and a gold wristwatch. The money found in the envelope in notes E29, 682.65. PW 12 also testified that inside the boot was a first aid kit, which he said had a green cross on it, a fact of which he was not sure because of the lapse of time. He also found two condoms.
PW 12 denied, when put to him that the 35 Pula was found in the cabby hole of the motor vehicle and not on Accused 1â€™s person. It was further put to PW 12 that there were three persons in the BMW motor vehicle, being the two accused persons and one Solomon Mlambo or Nkuna, who asked to be excused to relieve himself at Piggâ€™s Peak before the arrest of the accused persons. This PW 12 vehemently denied, insisting that it was only the accused persons who were in the motor vehicle.
Regarding Count 4, the Crown called PW 9, Dumsile Bonsile Dlamini, an employee of Carters Mall, Mbabane. It was her evidence that as an Accounts Clerk, it was her duty to do the daily banking. On the 7th September 1999, she prepared some documents in preparation for banking. The total amount for banking was E69, 997.15, consisting of E30, 822.65 in cash and E39.174.50 in cheque form. The entries for the transactions were made on the cash deposit book and cheques deposit on the cheque deposit register. Having calculated the totals, she put the money and cheque in a moneybag. She then placed the bag and deposit books in a bag with a zipper and placed this bag at the place where the driver Cyprian Senzo Masuku would pick it up for purposes of taking it to the bank. It was her evidence that Masuku must have taken the bag because it was no longer where she had put it.
PW 9 was shown a moneybag with the inscriptions of Nedbank and by ink was written E1.00 â€“ E500 and she testified that it was the one in which she had put in the bag for collection by Masuku. Asked how she identified the bag, PW 9 testified that it was still new at the time and why it had handwritten inscriptions was that they had just requested coins in the E1 denomination the total of which was E500-00. Secondly, when it was received, it had the red marks of a sealing wax and these she pointed at.
PW 10 was Cyprian Senzo Masuku, a driver at Carters Mall. He testified that he was on duty on the 7th September 1999 and at about 11h45, he took money from work to the bank. The money was in a navy bag with a zipper and some handles. He drove to the bank and parked the motor vehicle next to the market place next to Barclays Bank, where he was headed. As PW 10 got out of the vehicle, and was locking it, somebody hit him on the back and as he tried to turn around, he realised that the person who hit him was already holding the bag.
Soon thereafter, he saw that there were two (2) young males and one was pointing a firearm at him. They then dispossessed PW 10 of the bag. It was PW 10â€™s evidence that one of these assailants was darker in complexion than the other and he was tall and slender. The other was shorter and light in complexion. The taller one is the one who pointed the firearm at PW 10. The men ran away with the bag, got into a white Toyota Corolla Sedan with a foreign registration number ending with MP and they drove off in the Manzini direction from the market. PW 9 went to the Court parking yard and identified the vehicle in Count 3 as looking like the vehicle he had seen and in which the robbers drove off.
PW 10 told the Court that the firearm used to point at him was a brown revolver. When shown a black pistol, PW 10 told the Court that he had nothing to say about it. PW 10 gave a description of the moneybag on fours with that given by PW 9. When shown the moneybag, he confirmed that it was the one he used on the 7th September 1999. No credence can however be placed on this because it transpired in cross-examination that he did not open the leather bag in order to ascertain what its contents were. The evidence of PW 9 would however suffice in this regard, since from her evidence, there is no novus actus interveniens that could have broken the link between the placing of the leather bag by PW 9 and the taking of the bag by PW 10. None was suggested. In any event, when the bag that was clearly taken from Masuku was found, it was contained in the money bag in which she had put it and the cash equalled that she had prepared for banking.
The accused person in his evidence in chief, denied having committed the robbery in Count 4. He told the Court that he was not even in the country when the said offence was committed. According to him, his last visit to this country was on the 26th August 1999, followed by his visit on the 6th September 1999, immediately before his arrest on the 7th September 1999.
The question to be determined now is whether on the evidence adduced by the Crown, together with the accusedâ€™s explanations and denials, can it be said beyond a reasonable doubt that the accused was one of the persons who committed the robbery in Count 3?
It is common cause that both PW 11 and PW 13 were robbed at night in the absence of any source of light. According to their evidence, they did not see their assailants. PW 11 did however say that his assailants were two in number. One was tall, slender and dark in complexion, while the other was short, stout and light in complexion. He did not describe their features. Given the time when the robbery took place i.e. just before 22h00 and the frightening nature of robbery where firearms are actually discharged, can it be said that any credence must be placed on PW 11â€™s scanty descriptions to return a verdict of guilty?
I think not. As aforesaid, there was no light sufficient for PW 11 and PW 13 to see the assailants. No identification parade was or could be mounted in view of the attendant circumstances in this case. I am also not oblivious to the fact that both PW 11 and PW 13 were caused to come and did identify certain items said to have been found in the BMW vehicle when the accused were arrested and this was in the presence of the accused persons. This in my view must be the occasion when PW 11 saw the features, particularly the complexion of the accused persons. Given the intimidating nature of the ordeal, as testified to by both the witnesses, they cannot be said to have had the time or the opportunity to see the complexion of their assailants in that darkness. I must therefore strongly warn myself, as I hereby do, of the danger of relying on PW 11â€™s scanty and unreliable identification as a basis for the conviction.
Having said this, there is however evidence by the Crown, in particular, PW 12 that there is money in the Botswana currency that was found in the accused persons pockets. According to PW 12, this money, which was exhibited in Court, amounted to 35 Pula notes and in the following denominations â€“ 1 x 20 P, 1 x 10P and 1 x 5 P. It is this amount and in the above denominations together with some coins (Tebe) that PW 13 said was in her purse when she was robbed two days previously. Admittedly, there is a contradiction between PW 11 and PW 13â€™s evidence as to the amount in Pulas. PW 11 said it was about (my emphasis) P 28, yet PW 13, in whose possession it was, emphatically stated that it was Pula 35 notes.
I accept PW13â€™s evidence on this aspect as she was the person in possession. I cannot say that PW 11 lied or deliberately misled the Court on this issue. In point of fact, he offered an estimate which I consider to be good, considering that he was not in possession thereof. He was not cross-examined by the defence on the amount in Pula taken from PW 13.
It was put to PW 12 that the Pula currency was in the cabby hole of the vehicle and which PW 12 denied, insisting that it was in the accusedâ€™s pocket with the other money that was found on his person. This issue was not taken further by the accusedâ€™s Counsel. In his evidence in chief, the accused told the Court that the Pula 35 was not on his person and that PW 12 never conducted any search on the accusedâ€™s body, which would have resulted in this money having been found. He proceeded to tell the Court that the 35 Pula belonged to him and that he had come with it from South Africa.
His possession of that money was explained as follows: - That he owns a Kombi that ferries people and plies the Vaal Maseru route. One day, the driver of that Kombi returned with 1,000 Pula and which was changed presumably to Rands. He was however unable to change the 35 Pula of the P1, 000.00 and which is how it remained in his possession.
I interpolate to state that it was never put to PW 12 that he never conducted a body search of the accused persons. This I say in full consideration of PW 12â€™s direct evidence that he searched the accusedâ€™s person, which was not controverted until the defence case. Secondly, the story of how the accused got to be in possession of the 35 Pula was not put to PW 11, PW 12 or PW 13. It was stated for the first time by the accused when adducing his evidence in chief.
The proper approach to be adopted to evidence of this nature was stated accurately and authoritatively by Hannah C.J. in REX VS DOMINIC MNGOMEZULU AND NINE OTHERS CRIM. CASE NO. 94/90 (unreported judgement) in the following terms at page 17: -
â€œIt is I think clear from the foregoing that failure by counsel to cross-examine
on important aspects of a prosecutionâ€™s witnessâ€™ testimony may place the defence
at risk of adverse comments being made and adverse inferences being drawn. If
he does not challenge a particular item of evidence, then an inference may be made
that at the time of cross examination his instructions were that the unchallenged
item was not disputed by the accused. And if the accused subsequently goes into the
witness box and denies the evidence in question, the Court may infer that he has
changed his story in the intervening period. It is also important that counsel should
put the defence case accurately. If he does not, and the accused subsequently
gives evidence at variance with what was put, the Court may again infer that there
has been a change in the accusedâ€™s story.â€
Regarding the two issues recorded above, I accordingly draw an adverse inference against the accused, for both issues were never put to the Crown witnesses to enable the Court to assess their reaction thereto. I accordingly find that the money as testified by PW 12 was found on the accusedâ€™s person during the body search. PW 12 was in my view clear and unmoved on this issue. I also reject the accusedâ€™s explanation as to how he got to be in possession of the Pula 35 as an after thought. Furthermore, the accused failed to explain the Tebe found in the vehicle, taking into account PW 13â€™s uncontroverted evidence that she also had some Tebe, the value of which she could no longer recall. It is safe in my view to conclude that this money belonged to PW 13.
The inference that I draw is that the accused person is one of the persons who was involved in the robbery of PW 11 and PW 13. This I say because of the money in Pula currency which PW 13 told the Court was taken from her by the robbers. It was found some four days later on the accused person. That was not all. The keys to the motor vehicle which was taken at gunpoint from PW 11 and PW 13, which he described and pointed out to my satisfaction, were found in the accusedâ€™s motor vehicle on the 7th during his arrest in Piggâ€™s Peak. They were under the accusedâ€™s seat as he was driving the vehicle.
In his evidence explaining how the keys landed under his seat, a story that was again not put to PW 12, the accused testified that he and the deceased accused offered a lift to one Solomon Nkuna/Mlambo who was known to the latter. Solomon took them to the Ministry of Home Affairs Head Quarters to what is PW 13â€™s motor vehicle on the evidence. He there removed a bag, car mats and a few other items and put them in the accusedâ€™s motor vehicle. He then sat in the passenger seat next to the accused. He put the keys for that vehicle in a compartment between the front seats and they later fell under the accusedâ€™s seat.
I must point out that it is strange that the accused would allow a stranger to seat with him in front rather than at the back. This he explained by saying that Solomon knew where he needed to pick up his items at Home Affairs and therefor needed to show the accused the way. That answer can arguably obtain regarding the journey from SIMPA to Home Affairs but I find it highly suspicious and unusual regarding the journey to Piggâ€™s Peak where Solomonâ€™s assistance in finding the directions was not needed.
I had occasion, after the defence case, to inspect the compartment where the keys to PW 13 motor vehicle were allegedly kept by Nkuna. The area is between the front seats but just behind the gear lever. It has a curvature in the middle and a wall towards the driverâ€™s seat, which would make it impossible for the keys to accidentally or otherwise fall under the driverâ€™s seat. If anything, the keys, if they fell from that compartment, would fall, not without difficulty though, under the front passengerâ€™s seat, where Nkuna was allegedly sitting. I therefor reject the accusedâ€™s explanation regarding why the Toyota Corolla keys were found under his seat. I must also mention that I find it curious that a person offered a lift by a stranger would place his car keys in the compartment alleged. The usual place would be in his pockets.
I had a doubt lingering over my mind regarding whether PW 11 could be said to have given incontrovertible evidence that the car mats were his because other than ordinary wear and tear on car mats, there was nothing peculiar to those he pointed out which could lead to the inescapable conclusion that they belonged to him and to no one else. Accused 1 in his evidence then confirmed that the mats were indeed taken from PW 11â€™s vehicle, another factor that links him to the robbery on Count 3. I will deal with the story involving the said Solomon later.
Other than that, there were Glorineâ€™s childrenâ€™s shoes found in the accusedâ€™s motor vehicle and the first aid kit. I admit regarding the latter though that PW 12 made a mistake by saying the kit had a green cross. PW 13 also said it had a piece of paper that he failed to show to the Court and which listed all its contents. This does not however materially detract from PW 13â€™s story in this regard as that piece of paper may have been removed at some unknown date and by some presently unidentified persons. The above not withstanding, I am satisfied that the first aid kit is the one that was taken from PW 11â€™s vehicle and was found in the boot of the accusedâ€™s motor vehicle. It was not in the bag that the accused said belonged to Solomon and I will deal with this later. There were also Glorineâ€™s pens and highlighters and keys with a Gaberone Sun tag and which she said were in her black hand bag which was taken by the robbers and later found in the accusedâ€™s motor vehicle. The accused later said that no highlighters were found and taken by the Royal Swaziland Police in his presence, an issue never put to the Crown witnesses, particularly PW 12.
While these pens and highlighters may readily be available to all, it is however too much of a coincidence that they and other personal items taken away from PW 11 and PW 13 were found in the accusedâ€™s vehicle. I therefor find that the accused person is sufficiently connected by the items found in his possession to the robbery of PW 11 and PW 13 on Count 3. The story that he was outside the country at the time cannot avail him as it is a notorious fact from the evidence and exhibits before Court that the accused were abusing Immigration offices by obtaining fraudulent travel documents and passports at will. The accused is accordingly found guilty on Count 3. I also note in this regard what was put to PW 12 on A1â€™s behalf that the accused had R820.00 on his person. This PW 12 denied. What is significant is that this is around the same amount that PW 13 said she had in her bag when robbed. She said it was around R800.00.
I earlier outlined the evidence led regarding Count 4. I cannot rely on the identification of the accused by Masuku because he clearly did not see their faces. He gave an indication of their complexion and stature which fits the accused persons but I will not rely thereon. It is common cause that Masuku was robbed of the money by two persons who left in a white Toyota Corolla with a foreign registration ending with MP.
Mr Masuku was called upon to identify the vehicle and at the parking lot were three Toyota Corollas of different models and colours. Two were white and one was red. He pointed at the one PW 11 claimed he was driving but which PW 13 said she was driving at the material time. I accept his evidence in this regard. The question is whether the accused was party to the robbery of Masuku, particularly considered in relation to two incidents i.e. his allegation that at the time the robbery is alleged to have occurred, he was at Lomahasha and that the bag in which the money which from the evidence was stolen from Masuku was found belonged to Solomon.
It is clear on first principles that when the robbery occurred, the accused person was in the country, having entered according to his version, on the 6th September 1999. The question is whether the story that he was at Lomahasha at the time is reasonably possible, in view of the fact that the money stolen was found in a vehicle that he was driving and was custodian over.
I reject the accusedâ€™s explanation that he was at Lomahasha for two reasons. Firstly and chiefly, this story was not put to any of the Crownâ€™s witnesses, particularly PW 9, PW 10, PW 12 and PW 18. It emerged for the first time when the accused took the witness box and the Court was in the process robbed of the opportunity and advantage of seeing the Crown witnessâ€™s reaction thereto. On the aforestated authority of R VS DOMINIC MNGOMEZULU AND NINE OTHERS (supra), I have no option but to declare the accusedâ€™s story of his visit to Lomahasha an afterthought as I hereby do. There was every opportunity of putting this to the Crown witnesses but to no avail. An adverse inference must as of necessity be drawn.
Secondly, the accusedâ€™s demeanour when giving evidence in general was not satisfactory, particularly under cross-examination. This was more pronounced when he testified about his trip to Lomahasha. His story was that he left for Lomahasha in the morning, leaving Accused 2 and his mother in Mbabane city. There was an arrangement to pick up Accused 2 at SIMPA later on his return from Lomahasha. When the accused returned, he picked up Accused Solomon and they eventually drove to Piggâ€™s Peak where they were eventually arrested.
In cross-examination, when asked a clear, simple and unambiguous question when he left for Lomahasha, he told the Court emphatically that it was around 12 â€“ to 1pm, though he said he could not recall correctly. Realising the obvious contradiction with his evidence in chief regarding this issue, he then asked to rectify the â€œmistakeâ€ and said he left in the morning, around 7 am and arriving at Lomahasha between 8h00 and 8h30. This nailed his colours to the mast and I have no hesitation to say that he lied deliberately in this respect. It was his evidence that he left Lomahasha for Mbabane after 12 pm, going for 1 pm and it was his further evidence that he arrived in Mbabane at 13h15 i.e. fifteen minutes later.
When taxed on this by the Crown, he gave unintelligible answers to the following effect: the accused then said he did not record the time, the incident happened in 1999 and that it was not dark when he returned to Mbabane. When put to him that he never went to Lomahasha and that he in fact robbed PW 10, he looked down and after a long pause denied this. His whole demeanour regarding this issue was totally unsatisfactory. It is a lie to say you can travel from Lomahasha to Mbabane in fifteen minutes. I take judicial notice of the distance between these areas which is in the excess of 100 km. His answers on this issue were incoherent and he became agitated and exhibited signs over heating. He constantly looked down faced with that barrage of searching questions from the Crown.
What further compounds the issue for the accused person and which detracts materially from the veracity of the Lomahasha story is the contradiction between A1 and A2. A1 testified that he had arranged to pick up A2 at SIMPA, his motherâ€™s place of employment. A2 on the other hand testified that their meeting was not prearranged thus casting a doubt on whether this did actually occur or was a concoction by the accused persons perchance it would serve to exculpate them. The contrary is the effect however.
I am alive to the salutary rule that the Court must not place undue emphasis on an accused personâ€™s demeanour in Court for making a credibility finding. In this regard H.C. Nicholas, â€œCredibility of Witnessesâ€ SALJ VOL. 102 Part I, 1985 had this to say in this regard at page 36: -
â€œAnother indication of veracity or mendecity is the demeanour of the witness. This
has been described as â€˜that vague and indefinable factor in estimating a witnessâ€™s
credibility.â€™ The deportment of witnesses in the witness box and the impression they
make upon a trial is often of great importance. â€˜But a finding of credibility based
badly on demeanour alone is not satisfactoryâ€™. For demeanour can often be
The above notwithstanding, the accusedâ€™s demeanour in the witness box, particularly on this issue was a great telling. The signs of over heating on simple and straight forward issues was an apt exemplification of what Osborne, â€œThe Mind of the Jurorâ€, 1937 at page 86 stated in the following terms: -
â€œThe witnesses speakâ€¦not by words aloneâ€¦Their faces and their changing
expressions may be pictures that prove the truth of the ancient Chinese saying that
a picture is equal to a thousand wordsâ€¦â€
I therefor formed the distinct impression that the alleged visit to Lomahasha was an unmitigated lie, deliberately concocted to remove and distance the accused from the time when the crime in Count 4 was committed. My conclusion in this regard is reinforced further by the accusedâ€™s response and behaviour when cross-examined by Mr Maseko as to why he never told the RSP on arrest in Piggâ€™s Peak that when the alleged robbery was committed, he was away at Lomahasha and why this was not put to PW 12. He was very uncomfortable and said he went to Lomahasha and that in any event, PW 10 Masuku had said he did not know the accused.
Another aspect worth mentioning is the time when the accused was arrested. According to the evidence of PW 12, which was not controverted by the defence, the accused motor vehicle arrived at the roadblock at around 12.10pm. However, in his evidence in chief the accused alleged that he was stopped at the roadblock between 14h00 and 15h00. This evidence would have served to tie in neatly with the time of his return from Lomahasha which I rejected. As mentioned earlier, the accusedâ€™s main pre-occupation in this regard was to explain his absence from Mbabane around the time of the robbery, unfortunately leaving gaping holes and some unanswered questions in his wake in the process.
I move on to address the question of the accusedâ€™s arrest in Piggâ€™s Peak. It was put to PW 12 that there were three persons in the accusedâ€™s motor vehicle, which PW 12 vehemently denied. His evidence was that it was only the two accused persons. He denied that Solomon was present and that the latter was excused by the RSP to answer a call of nature but took the opportunity to make his escape. This PW 12 denied.
I find PW 12â€™s evidence on this aspect a deliberate falsehood because it is clear from the evidence of PW 17 Captain Mona that PW 18 did enquire about Solomon and PW 18 himself did testify that they did try to find Solomonâ€™s whereabouts to no avail. This story is also confirmed by an article of the Times of Swaziland dated September 13 1999, which was by Martin Dlamini. In that article, Dlamini interviewed the Police Public Relations Officer, Superintendent Leckina Magagula (DW3). It was reported that of the time of the accusedâ€™s arrest, there were three persons. The third however evaded the Police. This report, it is clear, was made a few days after the incident and there is no evidence of a retraction or correction of any portion thereof. I find for a fact in the circumstances therefor that Solomon was with the accused persons on their arrest and the reason why the RSP deny his presence is the embarrassing spectacle revolving around his escape, showing that the RSP were hoodwinked by him. It is a serious, matter when RSP conceal important facts from the Court in order to cover the shortcomings of their investigations or to secure a conviction by hook or by crook as it were. I take a very dim view of PW 12â€™s conduct in this regard. It deserves severe censure because there is every indication from evidence aliunde that there were three persons there present.
Although I have held that PW 12 lied in this regard, it does not necessarily mean that the balance of his evidence on other issues must as of necessity and without more, be declared false. Authority for the proposition that the trial Court is at large, whilst rejecting a portion of a witnessâ€™s evidence accept it on other aspects is legion. See R VS KHUMALO 1916 AD 480 at 484 and S VS OOSTHUIZEN 1982 (3) SA 571 at 577.
The accused alleged that the bag in which the money was found belonged to Solomon and that Solomon told the RSP as much before his escape. In this regard, it is clear that the story that Solomon claimed ownership of the bag in the presence of the RSP was never put to the RSP, including PW 12 and PW 16. It only emerged for the first time when the accused was in the witness box. Furthermore and according to PW 12, the accused person, when quizzed about the money on its discovery, told the RSP that they were on their way to Nelspruit to buy stock. When asked how they would carry that stock seeing they were driving a sedan, the answer proffered was that there was a Canter truck which was following them which would carry the stock but had developed mechanical problems.
It was PW 12â€™s evidence that efforts to find the truck around Nkomanzi area where it was alleged by the accused persons to be proved futile as it was not found. PW 12â€™s evidence on this aspect in my view must stand. In any event, if the accusedâ€™s story is true, the RSP were aware of the robbery in Mbabane and from PW 12â€™s evidence, they suspected that the occupants of the vehicle could be involved. Having found the money and Solomon having claimed ownership of the bag in which the money was found, it is inconceivable that the RSP would allow him to answer the call of nature in a forest where his escape would be highly likely. This in my view lends credibility to PW 12â€™s story that the accused person gave a reasonable explanation surrounding possession of the money which was disproved after they failed to locate the truck and unfortunately by this time, Solomon had run away. I accordingly reject the evidence that Solomon claimed ownership of the bag as an afterthought.
The accused personâ€™s conduct, rather his reluctance to open the boot when asked to by PW 12 is in my view inconsistent with that of an innocent man. According to PW 12, after stopping the accusedâ€™s motor vehicle, he requested the accused to open the boot but the latter dilly dallied. PW 12 persisted and the accused eventually relented. It was denied on the accusedâ€™s behalf that he was reluctant to open the boot. It was put to PW 12 that the central locking system of the accusedâ€™s motor vehicle was faulty and it would sometimes refuse to open. PW 12 denied this and said if that was the case, then he was fortunate that on that day it did open without any problem.
In his evidence in chief, the accused gave a new explanation that the boot could not open without the vehicle idling and that he requested and was granted permission to run the engine. This was never put to PW 12. In my finding, PW 12â€™s evidence that the accused was reluctant to open the boot must stand and it is consistent with the accused knowing that there was money that had been illegally obtained in the boot. His explanation of how they were in possession thereof was merely an effort to deflect the course of justice. It is clear also that he knew about the money and the bag, hence the initial reluctance to open the boot. In the premises, it is my conclusion that the accused is one of the persons responsible for robbing Senzo Cyprian Masuku. It is clear also that the vehicle used in that robbery was PW 11â€™s vehicle, the keys of which and some items there from, were found in the boot of the accusedâ€™s motor vehicle. I am unable to say whether Accused 2 and Solomon were there but it is unnecessary. It is possible that all three were there and only two of them accosted PW 10 whilst the third remained in the motor vehicle, ready to make away with the booty. The accused is therefor guilty as charged on Count 4 as well.
This charge relates to the illegal possession of a firearm and presents a formidable challenge. I say so because there are two mutually destructive stories before Court. PW 18 testified that after being cautioned, both accused persons pointed out a 9mm pistol in a secret compartment of the accusedâ€™s motor vehicle on the 12th September 1999. Accused 1 on the other hand, denies that he pointed out any firearm and claims that he did not know that there was a firearm in that motor vehicle he was driving and which belongs to his mother. Registration documents in proof the latter assertion where exhibited in Court.
Accused 2 on the other hand testified that he is the only one who went to point out the firearm at Mbabane Police Station and that he had been severely assaulted by the RSP preceding the said pointing out. He testified that accused 1 was not there.
Accused 2 as he then was, was highly unsatisfactory in his evidence on the assaults and how he discovered the firearm. I formed the distinct impression that he was lying about how he was assaulted and the injuries allegedly sustained thereby. Accused 2 alleged that he was assaulted, tied with ropes with the RSP using a tube to suffocate him and that they also sat on him. As a result, he lost two of his front teeth. Later, under cross-examination, he stated that the teeth fell off after they were hooked by the rubber tube, a serious contradiction which proved to be a lie, as confirmed by his demeanour in the witness box, particularly on this aspect.
He also testified that had he not been tortured, he would not have pointed out the firearm. In cross examination he then told the Court that he could not have pointed the firearm out because he did not even know it was there. Immediately thereafter, he again changed his story and now testified that he went to show the RSP the firearm because he had seen one person driving the motor vehicle taking it out from that compartment. He decided to take a chance and fortunately found that it was there. The accusedâ€™s evidence on this issue is in my view riddled with inconsistencies and improbabilities that it must be rejected as false. For that reason, the Crownâ€™s evidence on this point is more preferable and I believe it.
Regarding Accused 1, he denied ever pointing out this firearm as aforesaid. He did however testify that he was tortured and told to show the RSP the whereabouts of the firearm. For the first time, Accused 1 alleged that he was unaware of the place from where it is alleged that the firearm was retrieved. He said he did not even think that a firearm could be kept there as in so far as he knew, that area was used for covering electric wires of the motor vehicle. It was his further evidence that he had never opened that compartment but it was usually opened by people who deal with electronics. He therefor did not think that a firearm could be kept there.
It is worth recalling that during an inspectio in loco, PW 18 showed the Court, in the accused personsâ€™ presence (together with their respective Counsel) where the firearm was pointed out. This story was never put to PW 18 i.e. that Accused 1 did not know the firearm could be kept there. He proceeded to testify that he did not know who had put the firearm in that place. It was his evidence that he is not the only person who drives the motor vehicle for his mother but that his brother and the accusedâ€™s nephew also drove it. He also told the Court that he had only heard about the firearm in Court and never before. These are all issues which should have properly been put to the Crown witnesses but that was not the case.
It is clear that the accused had been driving this vehicle before. Since it was never put to the Crown witnesses his ignorance of the place where the firearm was said to be found by the RSP and all the related issues, I draw an adverse inference against him on that score. It also seems inconceivable that Accused 2 would have known and seen the firearm as a passenger and not driver yet Accused 2, who drives the vehicle would not. I therefor reject his story in this regard.
PW 18 struck me as an impressive witness and my general assessment of his evidence is that he acquitted himself well. On the question of the firearm, he stood well to cross-examination and did not waver. The same cannot however be said of both accused persons on this issue.
Having said the above, there is one aspect however that leaves me with an eerie feeling. This is that according to both accused persons, their interviews or interrogations with PW 18 and his team was held in turns. The accused persons were never interviewed together at Lobamba on the question of the firearm. This was not denied by the Crown. The logical question following therefrom is how could the accused, who were interviewed separately proceed to point out one item together? This is something of a mystery, as to where and when both accused persons could have agreed and become ad idem about the pointing out is not clear. This in my view casts a shadow of doubt on the Crownâ€™s case which should enure to accused personâ€™s benefit in casu.
In this regard I find it apposite, in view of the competing versions, to quote with approval from S VS SINGH 1975 (1) SA 227 (N), where Leon J. had this to say:-
â€œIt would be impermissible to approach the case on the basis that, because the
court is satisfied as to the reliability of Crown witnesses, it therefore must reject
the accusedâ€™s evidence. There is no room for balancing the two versions i.e. the
state case against the accused case and to act on preponderance of probability.â€
I also proceed to quote from S VS KUBEKA 1982 (1) SA 534 (W) at 537 D-H, where Slomowitz stated the following:-
â€œWhether I subjectively disbelieve the accused is, however, not the test.
I need not even reject the state case in order to acquit him. It is not
enough that he contradicts other acceptable evidence. I am bound to
acquit him if there exists a reasonable possibility that his evidence
may be true. Such is the onus of the State.â€ (See also Rex Vs Moses
Momo Sithole Criminal Case 14/2002 per Maphalala J.)
It is clear in my view that the fact that I disbelieved the accused and believed the Crown witnesses does not per se mean that the Crown has discharged its onus. In casu, the separateness of the interviews as mentioned above casts a doubt. Furthermore, it cannot be said that the accusedâ€™s allegation that he did not point out the firearm is beyond reasonable doubt false and that he did not know it was there. It might have been helpful for the Crown to adduce more evidence of the pointing out in view of the evidence that PW 8 was not alone during the pointing out session. It must be considered also that the vehicle does not belong to the accused and he is not, according to his uncontroverted evidence, the sole driver thereof.
I therefor find that the Crown has failed to discharge the onus on it and I accordingly acquit and discharge the accused person on this charge although, as I said, there are curious features of the defence case that cause spasms of disquiet. The onus, it must be remembered, is not on the accused to prove his innocence but lies throughout on the back of the Crown.
In sum, the accused is found guilty of the remaining charges, being Counts 3 and 4 but is acquitted and discharged on Count 5.
I hereby order that the exhibits be returned to their owners as follows: -
-The shell and all parts of the Toyota Venture SD 534 DN to the Mashwama family
-Toyota Corolla â€“ to Macmillan Swaziland
-The firearm, Exhibit and round of ammunition are forfeited to the State
-The clothes, pens, keys etcetera are to be returned to PW 11 and PW 13
-The moneybag and money and Cash Deposit slips i.e. Exhibit P1 and P2 to
23rd April 2003
OBERT SITHEMBISO CHIKANE, you have been convicted of two Counts of robbery. I have listened to your Counsel in his submissions in mitigation of sentence. At this critical stage of the trial, I am called upon to attune three competing interests and to do my best to bring them to an equilibrium. These are in legal parlance referred to as the â€œtriadâ€, consisting of the seriousness of the offence, the interests of the community and your own
interests. Balancing these presents a formidable challenge.
I also bear in mind the chief objects of criminal punishment, which are retributive, rehabilitative and deterrent. In arriving at what I consider an appropriate sentence in your case, I will have due regard to the lapidary remarks of Jones J. in S VS QAMATA 1997 (1) SACR 479 at 480 where the learned Judge stated the following: -
â€œIt is now necessary for me to pass sentence. In doing so, it is proper to bear
in mind the chief objectives of criminal punishment, namely, retribution the
prevention of crime, the deterrence of criminals, and the reformation of the
offender. It is also necessary to impose a sentence which has a dispassionate
regard for the nature of the offence, the interest of the offender, and the interests
of the society. In weighing these considerations I should bear in mind the need:
to show an understanding of and compassion for the weaknesses of human
beings and the reasons why they commit serious crimes, by avoiding an overly
to demonstrate the outrage of society at the commission of serious crimes
by imposing an appropriate, and, if necessary, a severe sentence; and
to pass a sentence which is balanced sensible, and motivated by sound
reasons and which will therefore meet with the approval of the majority of law
abiding citizens. If I do not, the administration of justice will not enjoy the
confidence and respect of society.â€
In translating the above remarks to reality in your case, I shall commence by enumerating factors which it has been argued should enure to your benefit. These are the following: -
A first offender
A married man with three children
That you are a relatively young man of 36
I was also asked to backdate your sentence
I must point out however that the consequences to dependants must be considered before the commission of crimes such as this where elaborate planning is involved. Your age in this case is not a weighty factor as you are at the prime of your life. You are neither too young or too old. You are actually very mature at your age.
Having said the above, there is nothing to gainsay the fact that the offences with which you have been convicted are serious. I view them as particularly serious for a number of reasons. Firstly, you left your country of origin and decided to pounce on unsuspecting hard working Swazi citizens who were going about their normal business. In cases where cross-border criminals are convicted, the Courts must express the displeasure of the Southern African Development Community that serious cross-border crime shall not be tolerated. Heavy sentences with a scorpionâ€™s sting are therefor in order to communicate the message to those who have in contemplation engaging in such criminal undertakings that the bowels of compassion by the Courts may well be closed to eradicate such serious crimes.
Secondly, it is clear that the commission of these offences and the frequency with which they were committed bears a tower of testimony that these were motivated by greed. On your own evidence, you have told this Court that you own a transport business, which fact immediately removes you from the category of persons who engage in crime as a result of poverty. The message that crime does not pay must be sent to other persons to whom you may serve as a role model.
Thirdly, in both cases, you carried firearms, indicating that death of the victim in cases of resistance was within your contemplation. In point of fact, in Count 3, you held the victims in terrorem under the barrel of a gun for some time. You fired next to them, placed your firearms against their bodies, shouting obscenities at Mbuyisa in the process.
Fourthly, in both cases, particularly Count 3, you took items from the complainants which included money, a lap top computer and other personal effects. It is on record that some of these items were never recovered. In respect of Count 4, the cash was recovered and I am not certain whether the complainant has received payment in respect of the cheques, which I infer you must have destroyed in order to eliminate evidence that may have linked you to the offence in question. It is also clear that the crime was well planned and executed. Being the schemer and strategist that you are, you used a motor vehicle taken at gun point in Count 4, changed its registration numbers as a get away car. You later parked it and used another vehicle with the proceeds of crime in order to spirit away the money from this Kingdom. Lady fortune however turned her back on you as you were arrested in Piggâ€™s Peak.
I can infer, in respect of Count 3 that you and you companion, whoever it was, were responsible for causing the puncture of the motor vehicle in question in this Count. I say so because this was a short distance from the border and having deflated the tyre, you followed the vehicle knowing full well it would not sustain its travel for long. At first, you pretended to be good Samaritans but showed your true colours thereafter.
People who toil tirelessly and in the process acquire valuable property must not be deprived unlawfully and with violence their hard earned property. The public look to the Courts as their only solace and haven of protection in dealing firmly with people convicted of such nefarious crimes. You must therefor put out of circulation for a considerable length of time perchance you will have a long time to conduct a self-introspection, to take stock and to learn from your detours.
I consider the following sentence as appropriate in your case: -
You are hereby sentenced to fifteen (15) years imprisonment without the option of a fine. This sentence shall be backdated to 7th September 1999, being the date of your arrest. I do this as a means of flavouring justice with mercy.
Twelve years imprisonment without the option of a fine. Both Counts be and are hereby ordered to run consecutively.