THE
HIGH COURT OF SWAZILAND
CRIM.
APPEAL NO.58/02
In
the matter between:
NHLANHLA
D. MATSENJWA Appellant
VS
REX Respondent
CORAM :
MASUKU J.
ANNANDALE
J.
For
Applicant : In Person
For
Respondent : Mr P.
L.
K.
Ng'arua (D.
P.
P.)
JUDGEMENT
24/02/03
Masuku
J.
The
Appellant, to whom I shall continue to refer to as "the
accused", stood before the Senior Magistrate, Lubombo District,
charged with two offences of robbery and one count of illegal
possession of a firearm, in contravention of the provisions of
Section 11 (8) of Act No.6 of 1938, as amended.
The
accused pleaded not guilty to all the counts but was nonetheless
adjudged guilty by learned Senior Magistrate, who sentenced him as
follows: -
2
Count 1 - robbery five years imprisonment without the option of a
fine
Count
2 - contravention of Act 24/1964 - five years imprisonment, four of
which were conditionally suspended for three years.
Count
3 - Robbery - five years imprisonment without the option of a fine.
Count
1 and 3 were ordered to run consecutively, while Count 2 was ordered
to run
concurrently
with both sentences in Counts 1 and 3.
The
accused, by letter dated 16th May 2002, lodged an appeal against both
conviction and sentence. The grounds of appeal, were set out in the
aforesaid letter.
At
the commencement of the hearing, the accused referred the Court to
certain portions of the record which constituted his dissatisfaction,
particularly with the conviction. These shall be considered below. It
is however apposite at this stage, to briefly set out the evidence
tendered by the Crown in relation to the Counts in issue.
Counts
1 and 3.
PW
1, Ntombikayise Dlamini testified that on the 3 rd June 2001, whilst
in the employ of Madubeni General Dealer, at around 13h45, three boys
entered the shop and assaulted the customers. One of the boys went to
her with a drawn knife demanding some money. This boy's face was
covered with a balaclava hat. A man then entered the shop carrying a
firearm, which was pointed at them. By this time, all the customers
were lying down following an order issued by the man who was carrying
a knife. The man who was wielding the firearm jumped over the counter
and took the money in the till together with packets of cigarettes
and four (4) tins of canned beef.
The
men then ran out of the shop, shortly followed by the customers who
gave chase. One of the assailants, i.e. the one who was carrying the
firearm was apprehended and eventually arrested by the Police. It was
PW 1 's evidence that this man still wore the same clothes he was
wearing during the robbery and his face was not covered. She
identified that person as the accused.
3
PW
3 was Mavis Shongwe who worked with PW 1. She gave evidence that is
in line with PW 1 's, save that when ordered to lie down by the
robbers, unlike PW 1, she lied down and therefor was unable to see
the assailants. She confirmed that the customers pursued the robbers
and that she saw the accused who had been arrested in a police van
later.
PW
2 was 1882 Sub-Inspector Nxumalo, who tested a firearm in the
accused's presence at Matsapha College and which he declared
serviceable. PW4 was 1639 Sergeant Dube who gave an account of how
he, whilst off duty at Madubeni saw a group of people pursuing three
boys. On enquiry, he was informed that the boys had committed
robbery. He took his stick, called his dog and joined the chase. He
followed and eventually arrested that suspect who is the accused
before Court, his apprehension, drew out a revolver and pointed it at
PW 4. Other members of the community came and assisted in arresting
the accused in the bush where he was found. The firearm was found
underneath the accused's legs and had one live round of ammunition.
PW
5 Jim Hlanze gave an account of his role in apprehending the accused.
In
the appeal, the accused argued that PW 1 told the Court that the
person who was carrying a firearm looked like the accused but it was
not him. The Court, it was argued, wrongly convicted him, his only
crime being that he resembled the assailant. There is no merit in
this argument because it is clear from PW 1 's evidence that she saw
the accused when he entered the shop. It was during the day and his
face was not covered. It was her evidence that she did not adhere to
the order to lie down. She therefor had the time and opportunity to
see the accused.
Furthermore,
she saw the accused after he had been arrested not long after the
robbery. He was still wearing the same clothes. Under
cross-examination, PW 1 was stead fast in her evidence that she saw
the accused during the robbery and that he is the one who was
carrying the firearm. For that reason, it cannot be said he could
reasonably possibly be a victim of mistaken identity, particularly
taking into account the evidence of the other witnesses, being PW 2,
3 and 4. This one must fail.
4
The
next attack was targeted to the evidence of PW 3, namely that she
testified that she never saw the robbers as she was lying down on the
floor following the robbers' order and the Court was therefor wrong
in relying on her evidence. Whilst it is correct that this witness
did not see the assailants, what she did not see was seen by PW 1,
whose evidence was correctly relied upon by the Court. Furthermore,
there is no novus actus interveniens between the chase given by the
customers after the robbery and the arrest of the accused person. PW
3 testified that she saw the accused in the Police van. The
circumstances of his arrest are explained by PW 4 and PW 5 and fall
in neatly with the evidence of PW 1 and PW 3. This attack is also
baseless and must be rejected out of hand.
The
accused's third gripe revolved around his arrest. He contended that
there was a contradiction in the evidence of PW 4 and PW 5, who both
claimed that they arrested the accused. PW 5 in fact told the Court,
under cross-examination that PW 4 was not telling the truth when he
said he was the one who arrested the accused.
My
Brother Annandale J., with whom I sat, correctly observed that there
was no contradiction between the two pieces of evidence. He reasoned
that PW 5 apprehended the accused but PW 4, a Police Officer is the
one who effected an arrest by touching the accused, informing him of
the offences for which he was arrested and further cautioning him in
terms of the Judges' Rules. From the time they estimated the incident
occurred, there is a difference of an hour, which in my view is not
serious enough to detract from the veracity of the evidence. It is
also clear that both PW 4 and 5 were present when the accused was
arrested. In this regard, PW 5 testified that he was bitten by PW 4's
dog during the scuffle.
Even
if we are wrong in concluding that the accused, being a layperson at
law fails to distinguish between apprehension and arrest, the
question is whether the contradiction, if it exists, is so serious
that it goes to the heart or gravamen of the charges against the
accused person. In my view, whether or not it was PW 4 or 5 that
arrested the accused if there is a contradiction thereon is not such
a serious issue as to go to the heart of the matter. The arrest was
at the tail end of the process and does nothing to exculpate the
accused from both counts.
5
In
view of the foregoing, I am of the considered view that this ground
of appeal lacks substance and ought therefor to be dismissed.
The
accused also argued that the firearm was not found on him and that it
is not clear as to where the firearm was allegedly found. The
evidence of PW 4 is in this regard is crystal clear. He testified
that the firearm was found at the accused's legs. In cross
examination, the following exchange occurred at page 28 line 13.
"Q: Do
you recall when you told the Court that you found the gun from the
legs A: Yes below your legs
Q: Do
you recall, you didn't say the gun was found on the ground A: I said
it was found below your legs where you had been seated
Q: What
made you not tell the Court that you found the gun on the ground
where
I had hidden myself. A: In fact, when you were being chased, as it
was a ditch, you fell down and 1
I
think the gun also fell from you and you sat over it, and I found it
underneath
your
legs not inside your trousers."
From
the exchange, although the accused later tried to deny, it is very
clear that the firearm was found with him or under him. It is untrue
that there was no firearm found with him during the arrest. The
evidence that he was asked to produce a licence for the possession of
a firearm he completely failed to challenge. More importantly, the
accused, when he tendered his evidence, never denied or indeed try to
give a reasonable explanation regarding the evidence that the firearm
was found with him. No credence can therefor attach to his belated
and ineffective denial in the circumstances.
The
other salvo launched by the accused was that he was never given an
opportunity to adduce evidence on Counts 2 and 3 but that when he
expected to do so, he was cross-examined by the Crown. This is not
included in the heads but must nonetheless be rejected as
insupportable. It is clear at page 44 of the record that the
accused's rights at the close of the Crown's case were fully
explained to him and he exercised them accordingly. After he had
testified under oath, having been given an opportunity to state his
story, he denied
6
having
committed Count 3 and said he knew nothing about Counts 1 and 2.
After that, he indicated that that was all he intended to say,
whereupon he was cross-examined by the Crown.
There
is no merit whatsoever on this ground as the accused, from the
record, did say whatever he intended to say. He chose not to lead any
evidence or explain his position regarding Counts 1 and 2, choosing
instead to say he knew nothing about them. Equally worthy of
rejection is his suggestion that the Magistrate was biased against
him and vindictive. It is clear from the record that this is not so.
The Magistrate was very sensitive to the numerous postponements at
the accused's behest and for the flimsiest of reasons. If anything,
the learned Magistrate was over-indulgent to the accused and I say
without hesitation that had I been sitting in his place, I would not
have granted postponements for the reasons advanced by the accused,
which clearly contributed to the delay in finalising the trial and
causing manifold inconveniences to Crown witnesses in the process.
Count
3
The
evidence in this Count is again very clear. PW 6 Celumusa Lukhele
testified how on the 1st June 2001, around mid-day, two male persons
came into the shop where he worked at Mphaphati General Dealer. One
of these persons was carrying a dirty E20.00 note and asked to buy a
Fanta Orange drink. As PW 6 took the drink from the refrigerator, one
of the persons produced a firearm and, pointed it to PW 6. PW 6
raised an alarm and tried to flee, whereupon the other person, who
was carrying a knife approached and fought with PW 6. He placed the
knife on PW 6's neck. PW 6 managed to escape to tell some people at a
construction site of the ordeal.
He
saw the assailants leaving the shop later and on return there found
that a cash box and an amount of E100.00 was missing together with a
litre of Fanta Orange. He reported this to the Police. PW 6 testified
that he saw the man wielding the firearm, described his clothes and
informed the Court that his face was not covered whereas the other's
face was covered with a balaclava.
In
the circumstances, I do find that PW 6's identification of the
accused can in the circumstances be relied on. Furthermore PW 7
Babane Nyawo testified how he was asked
7
by
the Police to go with them and where the accused pointed out the cash
moneybox and the 1 litre Fanta bottle. These items fitted the
description of those that were taken by the robbers from PW 6's shop.
These were found in a bush in a place called Diliza. This evidence
shows beyond doubt that the accused was one of the robbers and I may
mention that there is a similarity in the robbery offences in those
cases, where the accused would not cover his face and was accompanied
by a cautious knife-wielding robber, who concealed his face.
Furthermore, the firearm that was found in the accused's possession
in any event fits the description given by PW 6. Another noteworthy
factor is that there was one day between these two robberies.
It
is my view, in view of the foregoing that the appeal against
conviction is liable to fail and is therefor dismissed. Regarding the
issue of sentence, the accused failed to advance any arguments which
could show that there was a misdirection or gross irregularity
committed by the Court a quo in meting out the sentence it did. All
that the accused did was to implore this Court to order all the
sentences to run concurrently.
The
applicable principles on questions of interference with the sentence
of the trial Court were stated with absolute clarity by Mahomed C.J.
in S VS SHIKUNGA 2000 (1) SA 616 (NMSC) at 631 in the following
language:-
"It
is trite law that the issue of sentencing is one which vests
discretion in the trial court. An Appeal Court will only interfere
with the exercise of this discretion where it is felt that the
sentence imposed is not a reasonable one or where the discretion has
not been judiciously exercised. The circumstances in which a Court of
Appeal will interfere with the sentence imposed by the trial Court
are where the trial Court has misdirected itself on the facts or the
law (S VS RABIE
1975
(4) SA 855 (A); or where the sentence that is imposed is one which is
manifestly inappropriate and induces a sense of shock (S VS SNYDERS
1982
(2) SA 694 A; or is such that a patent disparity exists between the
sentence that was imposed and the sentence that the Court of Appeal
would have imposed S VS ABT
1975
(3) SA 214 (A); or where there is an over emphasis of the gravity of
the particular crime and an under - emphasis of the accused's
personal circumstances. ( S VS MASEKO 1982 (1) SA 99 (A) @ 102; S VS
COLLETT
1990
(1) SACR 465 (A))"
8
It
is abundantly clear that the accused has failed to bring his matter
within any of the exceptions set out above. We cannot in the
circumstances interfere with the sentence duly considered and soberly
imposed by the trial Magistrate.
The
offences you committed were serious and involved the use of lethal
weapons on law-abiding citizens who were going about their business.
It is also clear that you were on a robbery spree and that if you had
not been apprehended after the second attempt, one wonders how many
victims you would have despoiled of their hard earned property.
Persons who engage in such nefarious schemes deserve to be put away
from circulation for a long time. The sentences fit you, the offences
and the interests of the community. I therefor find no justification
for disturbing the sentence.
In
sum, the appeal against both conviction and sentence be and is hereby
dismissed.
T.S.
MASUKU
judge
I
agree
J.P.
ANNANDALE
JUDGE
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