IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CIVIL
TRIAL NO. 551/03
In
the matter between:
JOHN
SHONGWE Applicant
Vs
THE
COMMISSIONER OF POLICE 1st Respondent
THE
ATTORNEY GENERAL 2nd Respondent
SWAZILAND
UNITED BAKERIES LIMITED 3rd Respondent
Coram Annandale,
ACJ
For
1st and 2nd Respondents Mr. T. Dlamini
For
3rd Respondent Mr. N. Hlophe
JUDGMENT
30th
April, 2004
The
present application is brought under Section 324(2) of the Criminal
Procedure and Evidence Act, 1938 (Act 67 of 1938) (hereinafter
referred to as "the Act"), wherein there is a "tug of
war" between the applicant and the third respondent over a part
of a sum of money that was seized by the police during the course of
a criminal investigation, which ultimately resulted in the trial of
four persons charged with robbery of the third respondent's firm. At
the conclusion of the trial in the High Court, presided over by the
learned former Chief Justice, the then second accused, now applicant,
was convicted of the crime of theft. A custodial sentence of 4 years
imprisonment was imposed, half of it being conditionally suspended.
The court then ordered as follows, regarding the subject matter of
this application:-
"All
exhibits of money are to be held by the police for a period of 60
days and unless claimed by anyone entitled thereto after such period
of 60 days be forfeited to the state for the benefit of the
consolidated revenue."
The
section of the Act under which the application is brought reads
that:-
"Section
324 (1) After the conclusion of any trial and subject to any special
provision contained in any law, the court may make a special order as
to the return to the person entitled thereto of the property in
respect of which the offence was committed or of any property seized
or taken under this Act or produced at such trial.
(2)
If no such order is made the property shall, on application, be
returned to the person from whose possession it was obtained (unless
it was proved during the trial that he was not entitled to such
property) after deduction of the expenses incurred since the
conclusion of such trial in connection with the custody of such
property:
Provided
that if within a period of three months after the conclusion of the
trial no application is made under this Section for the return of the
property, or if the person applying is not entitled thereto or does
not pay such expenses, such property shall vest in the Government."
The
order now sought by the applicant is to release the sum of E19
519.50, of the sum of E26 104.80, allegedly still in the possession
of the 1st and 2nd respondents, to himself. Swaziland United Bakeries
Limited, the then complainant in the criminal trial, opposed the
application, was joined by consent as the third respondent, and in
turn seek the release
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of
the sum of E26 519.50 (a different figure than that mentioned by the
applicant in the current main application) to be released to itself.
From
the papers filed herein, it seems that there was some misapprehension
as to who may be entitled to seek an order to restore confiscated
monies to a complainant in a criminal trial, quite possibly emanating
from the established practice in South African courts, which are
procedurally regulated to a different extent than what the position
is in the Kingdom of Swaziland. Section 300 of the South African
Criminal Procedure Act of 1977 (Act 51 of 1977) reads that;
"300
(1) Where a person is convicted by a superior court... of an offence
which has caused damage to or loss of property (including money)
belonging to some other person, the court in question may, upon the
application by the injured person or the prosecutor acting on the
instructions of the injured person (my emphasis), further award the
injured person compensation for such damage or loss:...
(2)
For the purposes of determining the amount of the compensation or the
liability of the convicted person therefore, the court may refer to
the evidence and the proceedings at the trial or hear further
evidence either upon affidavit or orally.
(3)
(a)...{
{The
effect of such judgment is akin to a civil judgment of the court.}
(b)...
(4)
Where money of the person convicted is taken from him upon his
arrest, the court may order that payment be made forthwith from such
money in satisfaction or an account of the award..."
The
court has not been referred to any legal provision, nor am I aware of
such, whereby an injured party in Swaziland can apply to court for
compensation or return of
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confiscated
exhibits, through the prosecuting authority, as the case is under
South African Law. Our own Act states in Section 321(1) that:
"321
(1) If any person has been convicted of an offence which has caused
personal injury to some person, or damage to or loss of property
belonging to some other person (my emphasis), the court trying the
case may, after recording the conviction and upon the application of
the injured party (my emphasis) award him the compensation for such
injury, damage or loss...
Provided
that such compensation shall, subject to any other Act, in no case
exceed four hundred Rand."
There
is also an inclusion in the Criminal Code, under Section 321(6),
which reads that:-
"If
any moneys of the accused have been taken from him upon his
apprehension, the court may order payment in satisfaction or on
account of the award, as the case may be, to be made forthwith from
such amount."
This
provision is not of real assistance in the present application
either. It is also to be noted that the wording of Section 321(1)
quoted above, is at odds with the citation of the same Section quoted
by the late learned Dunn J in R V COBRA MSIBI AND 8 OTHERS,
(unreported) Criminal Case No. 66/90, in the "Ruling on
applications in terms of Sections 321 and 324 of Act No. 67 of 1938,"
dated the 16th November 1990. Therein, the phrase "upon the
application of the injured party", underlined above, was quoted
as ".. .upon application made by or on behalf of the injured
party". The award made therein is many times more than E400,
indicative further that different versions of the same enactment are
at hand. Nevertheless, as said below, it is not the determinative
issue at hand.
Although
there is no provision in our Act that an application be made on
behalf of some person or injured party, the Act also does not state
that such party is precluded from
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making
the application through the Crown's Prosecution Service, or an
attorney acting on its behalf. I do not need to determine the issue,
which in any event is severely restricted to E400, as that is not the
issue to decide. The application brought on behalf of the 3rd
Respondent, allegedly by the Crown, has been withdrawn, with costs
tendered. There is however a difficulty to find, as is contended by
the applicant's attorney, that the withdrawal of the application
amounts to a disbandonment of the claim and a forfeiture of any
potential right to compensation or restitution. That cannot be so and
to argue otherwise, misses the point of the difference between the
withdrawal of an application and a concession that no claim exists.
The point that has to be decided is whether the 3rd respondents, or
the applicant for that matter, is entitled to an order that the money
seized by the police, the subject matter of this application, is to
be given to anybody, or whether it is to remain forfeited to the
state, for the benefit of the Consolidated Revenue Fund.
A
further point of contention is whether the applications of either the
3rd respondent or the applicant was brought in time, bearing in mind
the order of the trial court, that such application was to be made
within a period of 60 days by anyone with a claimed entitlement
thereto. The order can only be construed to mean that the period of
60 days commenced on the date of the order, which was made on the
12th December 2002, and that the window period ended 60 days later,
on the 11th February, 2003, at best.
From
the papers that were filed of record in this matter, it appears that
the application by the intervening party, Swaziland United bakeries
Limited, wherein both joinder and the release of E26 519.50 was
sought, was dated the 10th April 2003. This followed on the judgment
on sentence in the criminal trial, leaving a window period of 60
days, commencing on the 12th December 2002, clearly out of time. No
condonation for late filing, possibly due to the aforesaid withdrawal
of a prior application made on its behalf by the prosecution, was
made. No reasons for the late application were advanced either.
Likewise,
in the case of the present applicant, he also missed the time
constraint placed on an application regarding release of the monies.
The applicant's application is dated the 19th day of March 2003, also
much later than the 60 days allowed by the trial court,
6
and
again without seeking condonation for late filing, and an explanation
as to why it is out of time.
In
his founding affidavit, the applicant refers to the circumstances
that resulted in the confiscation of the money by the police and that
he wants it returned to him. In paragraph 10 of his affidavit he
states that:
"At
the conclusion of the trial the court made no specific order about
the disposal of the money and indicated that anyone entitled to it
would make a claim for it."
The
latter contention might be based on the truth but is not in
conformity with it. Again, I refer to the apposite paragraph in the
judgment on sentence dated the 12th December 2002, whereby the
applicant was imprisoned. It clearly and unequivocally states that:
"All
exhibits consisting of money are to be held by the police for a
period of 60 days and unless claimed by anyone entitled thereto after
such period of 60 days be forfeited...".
The
applicant clearly fails to appreciate that any claim to money held by
the police by anyone entitled thereto, had to be made prior to the
expiry of 60 days after the order of court. That was not done by
either the applicant or the third respondent. The wording of the
order is clear and unambiguous, leaving no room for
misinterpretation.
Despite
this and without any excuse to seek a deviation from the Order of
Court, with the wording of the Order well known, since it was
included in the papers, the time frame within which an application
had to be brought is merely neatly sidestepped by omission of the
period in his affidavit. The same applies to the third respondent.
It
is on this ground, the non-compliance with the time limit imposed at
the conclusion of the criminal trial, namely that anyone that is
entitled to the money concerned, is to claim it within sixty days,
that neither of the two applications can be entertained. From the
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date
of the Order until the lapse of sixty days, as permitted by the
learned Chief Justice, no claim was made to the money.
As
a result of the Order of the Court, the money was forfeited to the
state, for the benefit of the Consolidated Revenue Fund. It is not in
the hands of the Police, the First Respondent, anymore.
As
stated above, to further impact on the application, which was brought
way out of time and not merely fractionally, no application was made
to condone the lateness of either application, either in the papers
or from the Bar. I do not deem it to be proper to merely overlook the
delay in bringing the applications out of time and summarily condone
it. As said, the order of the court directed the money to be
forfeited sixty days afterwards, with it being absorbed into the
Consolidated Revenue Fund of Government.
In
order to have considered an application to condone the lateness of
filing a claim to the money, contrary to the order which set a
reasonable period of sixty days, (with no such application for
condonation at all), would at minimum have required it to be
established if it was still possible to ultimately order the
Commissioner of Police and the Attorney General to pay over the
claimed amounts, it already having been forfeited and taken into the
Consolidated Fund. This is however not presently an issue, it does
not come into play.
In
the event that this matter had to be decided on the actual merits and
demerits of the competing claims to the money, adverse remarks would
then have been made about the failure of attorneys to file papers
they undertook to file, during the course of the hearing. For
instance, much has been made about evidence at the trial whereat it
was said that the applicant tried his best to disassociate himself
from the money that is now the subject of the application, going as
far as stating that the money was "planted" by the police
to falsely incriminate him. Despite undertakings to do so, no
transcript of the evidence heard during the trial has been filed to
date. The same goes for various authorities and reference works that
are not available to Judges in the High Court library.
8
At
the hearing of this matter, State's counsel made valuable
contributions to assist the court. However, the attitude to support
the application of the third respondent goes to the merits of the
matter only. It does not advance the case any further as to why the
court should overlook the obstacle of the sixty day time barrier in
favour of only the third respondent's claim to the confiscated money
and at the same time, to reject the applicant's claim on exactly the
same basis. Nor was the third respondent able to show why there
should be a biased inclination to decide the matter in its own
favour, on the merits, and to overcome the same obstacle of being out
of time, as against the applicant. What goes for the goose goes for
the gander, to quote a hackneyed phrase.
In
the event, the claims of both the applicant and the third respondent,
to have the money that was confiscated by the police and has since
been forfeited to the state, released to them, are dismissed. Costs
are ordered to follow the event.
JACOBUS
P. ANNANDALE
ACTING
CHIEF JUSTICE
