IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CRIM. APP. CASE NO. 22/09
In the matter between:
WONDER VUSUMUZI SHABANGU Applicant
And
REX Respondent
Date of hearing: 15 July, 2010
Date of judgment: 16 July, 2010
CORAM: MASUKU J
MABUZA J
Applicant in person
Ms. Attorney N. Lukhele for the Respondent
MASUKU J.
[1] The applicant named above, was convicted by the Shiselweni Magistrate’s Court, sitting at Nhlangano for two counts of rape. He was sentenced to seven (7) years’ imprisonment in respect of each count and the sentences were ordered by that Court to run consecutively.
[2] Dissatisfied only with the sentences imposed, he appealed to this Court and applied for an order that the said sentences should be ordered by this Court to run concurrently. His appeal was dismissed by this Court by judgment dated 27 August, 2009.
[3] The present application, as one reads from the papers, is for a certificate for leave to appeal to the Supreme Court. This application is governed by the provisions of Rule 49 (1) as read with Rule 52 of the High Court Rules. The said Rules, read together, require the applicant to make such application within fourteen days from the date of the judgment sought to be appealed against, stating the applicant’s desire to be granted such leave and setting forth the grounds upon which leave is sought.
[4] From the documents filed of record, I do not have any document in the nature described above. In particular, there is no document filed within the period stipulated nor one that states the grounds upon which the certificate is sought. In the circumstances, one cannot be certain whether the applicant has fully complied with the requirements of the above quoted Rules.
[5] One thing that cannot, however, be disputed, is that the filing and custody of Court papers in this Court is not impressive at all. One very often finds papers wrongly filed or inexplicably missing from the relevant files. There is a possibility that the applicant did file his application timeously in this matter and it is from that perspective that we proceed to deal with the matter, considering as we also should, that he is unrepresented. This is an issue that the Registrar of this Court must address without further delay as it has the potential to result in delays and serious miscarriage of justice.
[6] At the hearing, the accused produced a letter in manuscript, which he alleged had been typed and sent to this Court in line with Rule 49 (1) as read with Rule 52, aforesaid. The letter is dated 2nd September, 2009, clearly within the period mentioned in paragraph [3] above. It would appear that the accused’s grounds for leave to appeal are that this Court did not consider his arguments on appeal “comprehensively and fairly enough”. As an example, he cites the Court’s rejection of his argument that he is terminally ill.
[7] The applicant, in oral argument sought to have this Court impugn the conviction, a course which cannot be allowed considering that his gripe was with the sentence imposed and not the conviction. He also harped upon his state of health, claiming that the Supreme Court may alter the sentence in his favour for that reason. We disagree with this position as stated in our previous judgment. As a last resort, the applicant implored the Court to deal with the matter on a humane and merciful basis because the sentence is heavy.
[8] The sole question for determination by this Court in cases where a certificate of leave to appeal is sought is the following: does the applicant have reasonable prospects of success on appeal? Put differently, the question can be, does the applicant have an arguable, such that a different Court may conceivably come to a different conclusion from that of the trial Court and this Court? See the Botswana Court of Appeal case of Mothusi Phogolo v The State Crim. App. No. 028-07 (C.A.) at page 2 para 2.
[9] We allowed the applicant to address the Court orally on the grounds why he is of the view that another Court may come to a different view on the sentences imposed by the trial Court. Sadly, his contentions are insupportable and fail to meet the relevant threshold and by far. As indicated in our judgment dated 27 August, 2009, the imposition of the appropriate sentence rests with the trial Court and that an appellate Court does not lightly or readily interfere with the exercise of that discretion.
[10] We came to the conclusion that the learned Magistrate, in view of the facts attendant to the case, correctly exercised her discretion in imposing the sentences she did and by further ordering them to run consecutively. This was and remains our view that that sentences imposed were imperatively called for and that ordering same to run consecutively would serve as a deterrent at both the individual and general level. What must not be considered in isolation, as the applicant now seeks, are his interests. These must be considered also in the light of the seriousness of the offences and their deleterious effects on the victims in tandem with the ubiquity of such crimes in this country.
[11] It would appear to us that the Supreme Court is not likely, on a proper conspectus of the attendant facts, to come to any conclusion than that arrived at by the Magistrate as confirmed by this Court. In short, it is our considered view that the Supreme Court is not likely to hold that this is a proper case where the sentences should be ordered to run concurrently. The grounds advanced by the applicant are, as I have stated, meritless.
[12] In the circumstances, there is only one order that we can properly issue and it is the following:
[12.1] The application for a certificate of leave to appeal to the Supreme Court be and is hereby dismissed.
[12.2] The applicant, if so advised, must draft a petition directly to the Supreme Court in terms of Rule 9 (1) of the Court of Appeal Rules, 1974, within six weeks from the date of this judgment.
DELIVERED IN OPEN COURT IN MBABANE ON THIS THE
16TH DAY OF JULY, 2010
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T. S. MASUKU
JUSTICE OF THE HIGH COURT
I agree.
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Q. M. MABUZA
JUSTICE OF THE HIGH COURT
Appellant in person
Directorate of Public Prosecutions for the Respondent
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