THE
HIGH COURT OF SWAZILAND
NELSON
SHODI ZIKALALA
Vs
REX
Criminal
Appeal Case No. 24/2002
Coram MAPHALALA
- J
ANNANDALE
- J
For
the Appellant MR. SIBANDZE
For
the Respondent MRS WAMALA
JUDGEMENT
(15/04/2003)
Maphalala
J
The
Appellant was convicted in the Magistrate's Court, Piggs Peak of
contravening Section 3 (a) read with Section 18 (1) of the Stock
Theft Act No. 5 of 1982 (as amended). He appeared with two others of
which one was discharged in terms of Section 174 (4) of the Criminal
Procedure and Evidence Act (as amended) at the close of the Crown
case. The other was convicted and sentenced together with him after
the close of evidence in
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the
court below. We gathered in the course of this Appeal that his
co-accused has since died. The accused persons in the court a quo
were charged with two counts of contravening the provisions of the
Stock Theft Act. The Appellant was then sentenced to two (2) years
imprisonment. Half of the sentence was suspended for a period of
three years on condition accused is not convicted of an offence in
contravention of the Stock Theft Act No. 5 of 1982 committed during
the period of suspension. Both counts taken as one for purposes of
sentence.
The
Appellant now Appeals against both conviction and sentence. The
grounds of Appeal are couched in the following language:
1. In
Respect of Conviction.
1.1. The
learned Magistrate erred in fact and in law in finding that the
Appellant acted in common purpose with the 1st accused whereas the
Crown failed to show any unlawful conduct that could be imputed to
the Appellant.
1.2. The
learned Magistrate erred in law and in fact in finding that when PW12
Johannes Maphalala Mncina said in his evidence that he had not sold
any cattle across the Nkomazi river at Mnisi dipping tank or to any
of the accused people (including Appellant), he meant that no cattle
had been transferred from his kraal for any reason whatsoever during
the period in question.
1.3. The
learned Magistrate in fact and in law in disregarding the fact that
the cattle which are the subject matter of the case were in fact all
branded with the same mark being two cuts on the left ear whereas
complainant on both counts stated in their evidence specifically that
their cattle were not branded in any way. At no stage during the
proceedings did the complainants speak of their cattle being branded,
not even after the inspection in loco carried out by the court.
1.4. The
learned Magistrate erred in ignoring the fact that the stock removal
permits exhibits A and B were not connected with the crimes
complained of as the crown led no evidence whatsoever of their
(exhibits) connection with the crimes. In particular, the learned
Magistrate erred in not taking into account that the exhibit B was
issued on 4th October 1996 whereas the Crown led evidence that some
of the cattle described in exhibit B were transferred from accused
no. 2's kraal in September 1996 and whereas the exhibit indicates
that these cattle reached Accused no. 2's kraal in November 1996.
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1.5. The
learned Magistrate erred in not taking into account the fact that the
cattle described in exhibit A could have come from the kraal of Abel
Mabuza and in concluding that they could only have come from the
kraal of Maphalala Mncina.
1.6. The
learned Magistrate erred in finding that the stock removal permits
exhibits A and B were issued for the purposes of committing the
crimes complained of whereas no such evidence was led by the Crown
and whereas such conclusion is not supported by the evidence led.
1.7. The
learned Magistrate erred in drawing a negative inference from the
fact that it was not put to PW13 Mtete Patrick Dlamini that he had
pointed out the cattle described in exhibit B when they were being
transferred despite the fact that there is no evidence to the
contrary and the said PW13 admitted in cross-examination to not being
candid with the court in his testimony particularly with regard to
the transfer of cattle from his kraal.
1.8. The
learned Magistrate erred in law in returning a verdict of guilty
against the weight of the evidence and where he should, at the very
least, found that there existed a reasonable doubt.
1.9. The
learned Magistrate erred in finding that the Appellant should have
checked if the cattle had been de-registered from PW13's kraal in
view of his experience and his knowledge of the farmers in his area
whereas there was no legal duty on the Appellant to do so.
1.10. The
court erred in not taking into account accused's actions as being
consistent with innocence, inter alia, the fact he did not deny
making out and signing the stock removal permits (exhibit A and B)
and the fact that he co-operated with the police and at no stage did
he attempt to frustrate the police investigation.
2. SENTENCE.
In
the event this honourable Court concludes that the Appellant was
lightly convicted, then, the appeal against the sentence is on the
following grounds;
2.1. The
court erred in not finding the existence extenuating circumstances
based on the immature manner in which the crime was committed.
The
Crown paraded a total of fifteen witnesses to prove its case. The
Appellant and his
co-accused
gave their evidence under oath in their defence and the learned
Magistrate
gave
a lengthy judgment convicting the two accused persons. In respect of
the Appellant
the
learned Magistrate in his judgment stated that the Appellant did not
deny that he filled
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in
exhibits "A" and "B" which he later gave to his
supervisor for his signature. The Appellant was a Veterinary Officer
stationed in the area during the material time. The Magistrate found
that the Appellant knew accused no.1 from Bulembu as he used to see
him at the check-point. The Appellant told the court that he did not
recall the person who applied for exhibit "A" and "B".
Appellant told the court that the animals whose colours are written
at the back of exhibit "B" were pointed out to him at the
dip tank by one Mtete Dlamini. Surprisingly this was never put to
Mtete Dlamini. The learned Magistrate therefore rejected the
Appellant's evidence that animals whose colours appear at the back of
exhibit "B" were pointed out by Mtete Dlamini, because if
that was the case it would have been put to this witness. The learned
magistrate based on the above-mentioned evidence concluded that the
Appellant facilitated the theft of these animals from both
complainants' kraal.
The
question which confronts us in this Appeal is whether the
above-mentioned evidence which was led before the court below proved
a case against the Appellant beyond a reasonable doubt. Mr. Sibandze
who represented the Appellant is of the view that the Crown has not
proved its case beyond a reasonable doubt in casu and has advanced
formidable arguments in support thereto. The Crown on the other hand
as represented by Mrs. Wamala advanced equally forcefully arguments
to show that the Crown has proved a case against the Appellant beyond
a reasonable doubt.
Both
counsel filed very comprehensive Heads of Argument for which we are
grateful.
We
have considered the evidence in toto and the submissions advanced by
counsel. It appears to me that it has not been established as a
matter of fact or law that the Appellant acted in common purpose with
the 1st accused whereas the Crown has failed to show any unlawful
conduct that could be imputed to the Appellant.
The
essence of this doctrine is that, where two or more people associate
in a joint unlawful enterprise, each will be responsible for any acts
of his fellows which fall within
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their
common design or object (see C.R. Snyman, Criminal Law (2nd ED) at
page 260 and the cases cited thereat).
It
has not been established that Appellant agreed to commit the crimes
with 1st accused or that he actively associated himself with the
commission of the crimes. It has not been shown that the stock
removal permits (exhibits "A" and "B") issued by
the Appellant were issued for an unlawful purpose. PW13 Mtete Dlamini
admitted that certain cattle moved from his kraal through a stock
removal permit. He further admitted that he could not say whether it
was the one shown to him by the police. It is my considered view that
this raises some doubt in this matter.
All
in all, I am inclined to agree with the submissions by Mr. Sibandze
for the Appellant that there is a doubt that the Appellant was in
unlawful cohort with 1st accused in the commission of this offence.
Therefore, the benefit of the doubt ought to be in his favour.
For
the reasons advanced above I would propose that the Appeal succeeds
and it is so ordered.
S.B.
MAPHALALA
JUDGE
I
agree
J.P.
ANNANDALE
JUDGE
