IN THE HIGH COURT OF SWAZILAND
In the matter between: CASE NO.2816/08
NKOSIKAYIKHETHI NXUMALO 1st Applicant
VUSUMUZI HLATSHWAKO 2nd Applicant
MPENDULO MNGOMEZULU 3rd Applicant
And
MASHIKILISANA FAKUDZE 1st Respondent
LIEUTENANT GENERAL SOBANTU 2nd Respondent
DLAMINI
UMBUTFO SWAZILAND DEFENCE
FORCE 3rd Respondent
Mr. Attorney M. Mabila for the Applicant
Mr. Attorney N. Zwane for the Respondents
JUDGMENT
_____________________________________________________________
MASUKU J.
[1] The above-named Applicants approached this Court seeking the following relief:
(a)Reviewing and setting aside the proceedings in
the Applicants’ dismissal from their employ
with the 3rd Respondent.
ALTERNATIVELY
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Declaring the dismissal of the Applicants from their employ with the 3rd Respondent irregular and/or unconstitutional.
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Costs.
[2] Upon hearing Counsel appearing on behalf of the parties, I granted an Order in the Applicants’ favour on 19 October, 2009 and indicated therein that reasons for the Order would follow. Those reasons now follow. I should, however apologise for the delay in furnishing the reasons. A few factors congregated upon me resulting in the delay of delivery of the judgment, chief of which is the bulky record and the minutiae required to be considered, together with the complexity of some of the issues, which required meticulous attention and care. The heavy case load did not make the situation any better.
Facts and Background
[3] The Applicants were duly employed by the 3rd Respondent as soldiers. They were arraigned before the Court Martial. The 1st and 2nd Applicants were charged with theft of fuel allegedly belonging to the 3rd Respondent. The 3rd Applicant stood charged for receiving 50 litres of fuel knowing the same to have been stolen. I shall advert to the actual charges in due course. Their trial proceeded at the same time and at the close of the case for the prosecution, they were adjudged to have a case to answer. They, however, chose to remain silent and did not tender any evidence in support of their case.
[4] A reading of the Respondents’ papers will show that they raised points in limine which I need not repeat for present purposes. These were dismissed vide my judgment dated 4 September, 2009. The matter thereafter served before me on the merits and it is therewith that the present judgment is concerned.
Preliminary Observation
[5] There is a matter of grave concern that I need to point out relating to the papers filed in this matter, particularly by the 1st Respondent. Ordinarily, the 1st Respondent sits in the position of a judicial officer and he should ideally steer away from filing affidavits in matters of review such as the present. It normally suffices if he causes a true copy of the record of proceedings to be filed, avoiding in the process, descending into the arena and being caught in the dust of the conflict. See Mbuyisa Dlamini v Senior Magistrate Joe Gumedze and Another Civ. Case No. 2627/06 per Mamba J.
[6] At page 16 thereof, the learned Judge cited with approval the sentiments expressed by Hull C.J., with which I am in total agreement, in Director of Public Prosecutions v The Senior Magistrate, Nhlangano and Another 1987-1995 S.L.R. 17 at 22 G-I, where the following is recorded:
“Criminal trials, and applications for review, are of course not adversarial contests between the judicial officer and the prosecutor. It is wrong and unseemly that they should be allowed to acquire that flavor. Ordinarily on review, the judicial officer whose decision is being called into question is cited as a party for formal purposes only. He will have no need to do anything beyond arranging for the record to be sent up to the High Court, including any written reasons that he has or may wish to give for his decision.
It may be necessary, very occasionally, for him to make an affidavit as to the record. This is, however, to be avoided as far as possible. It is, generally, undesirable for a judicial officer to give evidence relating to proceedings that have been taken before him. In principle, there may be a need for a Magistrate to be represented by counsel upon a review, if his personal conduct or reputation is being impugned but these too will be in exceptional circumstances”.
[7] This was, however, a peculiar and exceptional case as envisaged above. I say so because the Applicants leveled allegations of partiality, bias and possibly untoward conduct on the part of the 1st Respondent which called his probity into question and which would, if proved, fundamentally affect the fairness of the proceedings. These serious allegations were ones in respect of which the 1st Respondent was in my view, entitled to respond to, but, if I may add, in a mature and measured manner. There was no need, as it happened, for the 1st Respondent to file an affidavit covering each and every allegation made by the Applicants, even those unconnected with impugning his conduct and reputation.
[8] Furthermore, I observe that some of the 1st Respondent’s responses to some of the allegations contained in the founding affidavit, as much as they were detailed, unfortunately had a touch of sarcasm and cynicism. Some constituted inadmissible hearsay and were gratuitously offensive and speculative in the extreme, falling below what would be expected of any impartial person in the 1st Respondent’s position. Many of the responses were unnecessary and totally uncalled for.
[9] As much as allegations of bias and unfairness may understandably irk an officer in the 1st Respondent’s position, and indeed any judicial officer of note, it is the duty of the affected officer to respond thereto, if called for, with a measure of calmness, level-headedness and dignity. An over-reaction on his part may unfortunately tend to reinforce the allegations of bias or other improper conduct leveled against him or her.
[10] A sampling of a few examples of these responses would do to illustrate the point:
“14.3 I further state that the application was withdrawn because same was baseless and the attorney who moved it was ashamed that he could not support same by argument.”
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I reiterate that when the matter was
struck off the roll I was away in Europe and could never have prevented applicant’s
lawyers from going to court. I am also told that the failure by the applicants’ lawyer to secure the court order led him to quarreling with the applicants. Applicants lawyer then withdrew the application and applicants told him that they wanted to see him no more.
14.12 It is also amusing that the applicants are saying in their paragraph 12 that they instructed the said Zakhele to represent them in all matters that arose out of the theft of fuel but they also say that they instructed Bongani Mdluli during their hearing and are not giving reasons thereto. I state that the reason was because they had quarreled with the said Zakhele and further refused to pay him.
15.2 It would have been senseless to proceed with disciplinary proceedings which were without any purpose. It also beats reason why applicants claim to have demanded that their lawyer appear on their behalf when they claim everything was a formality. I also think that a lawyer has a busy schedule to stay and watch formalities for days I wonder if the applicants did pay for their lawyer.
16.2 May I also state that when applicants first appeared before the Court martial they said they needed no legal representation. I am told that the only thing the applicants requested from the military police before the commencement of the hearing was permission to have their traditional healer allowed in court and he was of course allowed.”
[11] Regarding the allegation that the Applicants’ lawyer Mr. Mdluli was denied a right to represent them by the Court Martial, the learned Judge Advocate says at paragraph 18.4:-
“The trial proceeded for some days and it is ridiculous that a lawyer would come all the way to remain a spectator in a trial in which he was refused audience and further do nothing about it. I reiterate that the said Mr. Mdluli was busy issuing instructions to the said Nkosinathi. It is possible that the said Mr. Mdluli found no defence to the applicants charges and availed himself so as to later make averments that he was refused audience and secure an order setting aside the proceedings of the Court Martial.”
[12] Furthermore, the 1st Respondent proceeded to give evidence in the affidavits of what some of the witnesses said during the trial. This is contained at page 95 of the record at paragraph 21. These should have been matters for argument on the record of proceedings which the 1st Respondent should not have dealt with in the affidavits. These are matters of record. Such an approach to such matters should be avoided in the future. There must be no room created in the mind of the reviewing Court that the allegations of bias e.t.c. leveled may have substance, judging from the manner in which the presiding officer responds to the allegations against him. I presently turn to the matters raised during the hearing.
Propriety of the Charges
[13] The 1st and 2nd Applicants were charged for contravening the provisions of section 20 (1) (a) of the Umbutfo Swaziland Defence Force Order No. 10/1977 (hereinafter called “the Order”), it being alleged that they on 13 November, 2006 stole 218 litres of petrol, valued at E1,264.04 and 400 litres of diesel valued at E2 480.00. Accused 3, on the other hand, was charged with receiving stolen property, being 50 litres of petrol, knowing the same to have been stolen, in contravention of section 20 (1) (c) of the said Order.
[14] I interpose to specifically point out that in respect of the first two accused persons, no allegation of common purpose is made and it is therefore unclear who stole how much of each of the two types of fuel. Regrettably, the Court Martial, at page 61 of the record, in its judgment said, “Accused No.2 acted in common purpose with accused No.1 in perpetrating the theft of fuel at Phocweni.” I will return to this issue later. In respect of Accused 3, no date was given as to when the offence was alleged to have occurred nor was the place where the theft allegedly took place disclosed, nor I may add, was the value of the fuel he was accused to have stolen disclosed, as was the case with his co-accused.
[15] The kernel of the Applicants’ contention was that the accused persons were charged in respect of a non-existent section of the Order. The argument in that regard was that the Umbutfo Swaziland Defence Order, 1977 does not have section 20 (1) (a) or (c). In response to this issue, which was actually raised in the founding affidavit, the 1st Respondent, at page 95 paragraph 20, denied that there is no section 20(1) (a) and (c) in the Order. He pointed out that the section was in the second schedule of the Order, a fact, he alleged, the Applicants’ legal representative was aware of. He further contended that it was incumbent on the accused persons to object to the charges if they were in respect of a non-existent section. Lastly, he alleged that the charge sheets were received on time and that the Applicants and their legal representatives had the relevant statutes at their disposal.
[16] I must state that it appears that the above denial was made with tongue in cheek because it is clear on first principles that the Order, properly so-called, does not have section 20 (1). In trying to make light of the Applicants’ argument, the 1st Respondent states in his papers that the section under which the charges were framed is in the second schedule to the Order. This is also, in my view, quite disingenuous because it appears clearly from a reading of the relevant law that the Applicants should have been charged under the Military Discipline Code of the U.S.D.F. and not in terms of the Order. This was clearly incorrect for there is clearly no section 20 (1) of the Order. The Discipline Code should have been specifically mentioned as being the basis of the charges or at the least, the charge sheet should have mentioned the Second Schedule to the Order as being the basis for the charges.
[17] I should also hasten to add that the 1st Respondent’s contention that the onus was on the Applicants to challenge the validity of the charges is incorrect. It is for the prosecution to ensure that accused persons are arraigned on proper and valid charges and not the other way round. You cannot properly fault an accused person for belatedly raising such an issue upon proper legal advice because it is primarily for the dominis litis as indicated earlier, to ensure that an accused person is arraigned on proper and valid charges. The Respondents cannot be allowed in their attempt to so easily wiggle their way out of such a glaring discrepancy and for which they are responsible.
[18] I need to mention that in relation to the first two accused persons, it is clear that the place from which the theft allegedly took place is not mentioned in the charge sheet. It is also not disclosed in relation to accused 3 where it is alleged he received the 50 litres of petrol. These deficiencies should, in my view, be considered in the light of the provisions of section 81 of Disciplinary Code. It reads as follows:-
“Every charge and every charge sheet shall be framed as prescribed, but so that every charge shall disclose the nature of the offence, the time and place of the commission of the offence and sufficient particulars to enable the accused to identify the act or omission with which he is charged.” (Emphasis added).
[19] Can it be said in the light of the deficiencies mentioned above, that the charge sheet fully complied with the above mandatory requirements? In particular, are the omissions of the time and place of commission of the offence not prejudicial to an accused person in his quest to fully identify in this instant the commission alleged against him? I am of the view that because of the deficiencies, the charge sheet was bad and fell foul of the prescriptive nature required by section 81 and therefore did not enable the accused persons to know fully the case they had to meet. This, invariably affected the fairness of the trial. It cannot be said, as the Respondents appear to contend, that this issue should not be considered now because it was not raised earlier.
[20] If the charge sheet in relation to the first two accused persons did not fall foul of the provisions of section 81 aforesaid, I would in all probability have found that notwithstanding that the wrong legislation had been cited there was no failure of justice for the reason that (subject to what I have said above), the said accused persons knew what the offence they were facing was and that for that reason, there was no failure of justice.
[21] The charge sheet was also bad for not alleging common purpose in relation to the theft charges. Common purpose is a legal concept that had to be pleaded in the charge sheet and may not be the subject of a legal conclusion by the Court when all the evidence is in. If no common purpose is alleged, the prosecution therefore bears the onus to prove in this case that each of the accused stole a certain number of litres of petrol or diesel as the case may be. In the absence of common purpose, it cannot be said, particularly because it appears that to some extent, circumstantial evidence is relied upon, that both accused persons stole the number of litres of fuel reflected in the charge sheet. I accordingly find that the certitude of guilt returned against the accused persons was predicated on a fatally defective charge sheet which in particular, offended against the express provisions of section 81 aforesaid.
[22] In relation to common purpose, I can safely add that there was no evidence that Accused 2 stole the fuel reflected in the charge sheet. The case against him, as I read, was that he had sold the same. I will review the admissibility of that evidence and test whether it ought to have stood. Regarding Accused 1, the verdict was predicated on a confession the said accused person allegedly made. Its admissibility will also be discussed later. I accordingly conclude that there was no evidence that Accused 2 stole the fuel. He could, subject to later considerations, be found guilty of receiving stolen property knowingly or having reason to believe it was stolen.
[23] For the sake of completeness, however, I find it necessary to consider the propriety of the conviction with regard to the evidence and procedure followed as well. I should commence this discussion by re-affirming the conclusion I reached in the previous judgment that section 85 of the Military Code stipulates that the rules of evidence as they apply to civil Courts of Swaziland shall be followed by military Courts.
[24] I need to make one additional observation in this regard though. Section 1 of the Military Disciplinary Code (supra), defines a “Civil Court” as, “any court of criminal jurisdiction but does not except where otherwise expressly provided, include any such court outside Swaziland in Swaziland.” This therefore confirms my conclusion that the rules of evidence followed in Courts of criminal jurisdiction, equally apply in military Courts.
[25] In my reading of the record of proceedings, I have discovered a litany of rules of evidence and even procedure, which appear to have been observed in breach by the Court Martial. I will not enumerate them all but will confine myself to what I consider to be major issues and which invariably affect the sustainability of the verdict, and possibly the sentence. These will be considered regardless of the fact that I have held that the charge sheet was bad in law.
Records of Fuel
[26] It must be mentioned at this nascent stage that the record books relating to the fuel were not exhibited before the Court Martial. The evidence that the amounts of fuel reflected in the charge sheet were stolen from the barracks in question was not backed by any admissible evidence, save the ipse dixit of PW1 and PW3. I shall say more of the evidence of the latter later. There is therefore no clear evidence as to how it was ascertained what the extent of the shortage was. The disappearance of the record books was admitted at paragraph 21.7 of the Answering Affidavit. Critically, there is no evidence or insinuation that the accused persons or some of their number, were responsible for the disappearance thereof.
[27] Equally baffling is the portion of the judgment at page 61 of the record, where the 1st Respondent says:-
“In coming to an appropriate sentence the court has considered that this is a very serious offence and that the extent of the theft remains unknown, that is for how long has the stealing been going on? It is clear from the co-ordination of the offence that there could be syndicates of perpetrators of theft within the defence force. This is deduced from the obvious intimidation of witnesses that transpired during the trial, the attempts to balance books overnight and the movement of fuel documents from one hand to another.”
It shows that there was no clear and admissible evidence in casu as to how it was determined that the fuel reflected in the charge sheet was actually stolen and critically, by the accused persons.
[28] I should, at this juncture, also point out the rather ready pointing of an accusing finger by some of the prosecution witnesses to the accused persons in the absence of evidence as being the fuel thieves. The said witnesses appear to have come to the legal conclusion that Accused 1 and 2 stole the fuel, which was essentially the duty of the Court. For instance, at page 17, PW1 says, “I told Mamba to warn his workmates against stealing the fuel as this was not the first time the accused were involved in such a scandal.” This piece of evidence was allowed by the Court Martial with no evidence in support of it. PW3, at page 22 also said in chief:-
A: On 14th November, 2006, I suspected something.
Q: What is something? Be specific.
A: That fuel has been stolen by accused”.
The Martial Court should have intervened in regard to all these answers but it did not.
Evidence Against Accused 1.
[29] It will bee seen that the 1st Applicant was convicted on the basis of the evidence of PW1 733460 Sgt. Jabulani Ndlovu. He testified that he reported for duty in the morning and saw that fuel had been stolen but only reported the theft in the afternoon. No reason is given for this lapse. Evidence was given about the spillage of fuel, with no expert evidence of what the fuel allegedly spilt was – petrol, diesel or even paraffin if any. Furthermore, there is no indication that the spillage, if any was properly certified to be fresh.
[30] There was also no expert evidence regarding the indentations allegedly made by the drums. Furthermore, there are no indications that the scene of crime was preserved nor were pictures of the same captured to provide credible evidence. No cogent reasons are given for that not having been done. There may be cases in which oral evidence suffices but there are also others in which real evidence and in yet other cases, expert testimony, is critically necessary.
[31] Accused 1 was also convicted on the basis of evidence of PW3 733791 Private Patrick Mamba. His evidence was wrongly admitted as I presently endeavour to show. On 14 December, 2006, it appears that PW3 gave evidence under oath. He stated that the books relating to fuel were balancing and was when questioned repeatedly by the prosecution, sure that that was indeed the case. This appears to have taken the prosecutor by surprise. PW1 continued and testified that Corporal Joseph Dlamini told him that the books were balancing, a fact he also confirmed. The following exchange then took place in PW 3’s evidence-in-chief as reflected on page 22 of the record:-
Q: Are you sure that the books were balancing?
A: I am sure.
Q: Why are you sure?
A: Corporal Joseph Dlamini told me that they
were balancing.
Q: Are you sure about the counting you made after discovering the marks?
A: I am sure.
Q: Why?
A: I don’t think I made a mistake. I was not the only one to count.
Q: Do you still believe that there was a shortage of fuel?
A: Yes.
Q: Dumisa, I don’t seem to understand what you are saying. Are you sure of your calculation?
A: Yes.
Q: Do you believe what Corporal. Joseph told you was the truth?
A: Yes.
Q: Are you aware that what you are saying is confusing?
A: Yes. That is what I know.
Prosecutor: The witness is confused. I apply that the court adjourns to give the witness time to come back to his proper senses. Since he is one witness on whom the court has to get the full picture of what happened. He is confused by what Corporal Joseph told him. He needs time to reconcile what he heard and what he saw when counting”.
[32] The defence opposed the application for an adjournment. The 1st Respondent then retorted as follows at page 23 of the record:-
“Isn’t the witness confused when he says he is sure of his calculations which showed that there was a shortage while at the same time he is of the calculations made by Corporal Joseph which were to the effect that the books were balancing?
Defence: He is not confused but just telling the truth.
Chairman: The court adjourns until after
Incwala giving Patrick Mamba time to clear his mind.”
The Court Martial, inspite of the defence’s protestations,
adjourned until 1 March, 2007 to enable PW3 “to clear his mind”.
[33] It would appear from the foregoing, that the said witness was departing from a statement that he had previously made. This is why the prosecution was taken aback. The prosecution sought to protect him by asking for an adjournment, which was granted. It is also clear that the Chairperson was of the view (and one knows not how) that the witness was confused. In this, he appears to have been partial.
[34] A situation such as the one which presented itself to the Court Martial is not unknown. Where a witness has departed from a statement that he has previously made, there is a procedure followed known as impeachment of the said witness, otherwise known as having the said witness being declared a hostile witness. He is asked if he did make a written statement and whether he confirms his signature. He is later cross-examined thereon by the party that called him. This is provided for by section 273 of the Criminal Procedure and Evidence Act, 1938.
[35] On his return on 1 March, 2007, PW3 having “cleared his mind,” there was a complete volte face on his part. He adduced evidence contrary to that he had adduced earlier. On his return after a few months, the Chairman at page 25 said:-
“Mamba you are warned, you are under oath. Tell the Court all that you know. You are not being threatened but warned. All we need is the truth.”
This, notwithstanding the cloak given to it by the 1st Respondent, had all the hallmarks of a threat or intimidation. It was for the prosecutor to admonish his client and not for the Court Martial to be seen to apply pressure on a witness to adduce evidence in a specific direction.
[36] Mamba thereafter proceeded adduce evidence that implicated Accused 1, claiming that he confessed, contrary to his previous evidence. The Court was, in the circumstances, not correct to rely on the evidence after Mamba, “cleared his mind”, short of following the aforesaid procedure of impeachment. Mamba was not a candid witness and on whom proper reliance for convicting a person could be safely placed.
[37] The other evidence which implicated Accused 1, was adduced by PW5 Corporal Jethro Bongani Dlamini, a member of the Military Police. He specifically testified that on 15 November, 2006, Accused 1 admitted that he had the keys to the depot and also admitted that he had drained the fuel himself during the night of 13 November, 2006.
[38] It is clear that PW5 alleges that Accused 1 made a confession before him regarding the offence of theft. In dealing with the said confession in its judgment, the Court Martial said the following at page 58:
“Although the court agree (sic) that confessions should be free and voluntary, the accused persons were supposed to give evidence as to how the statements were extracted to prove the involuntariness. In the absence of their side of the story there is nothing to suggest that their statements were not free and voluntary. All the accused persons were therefore supposed to give that explanation.”
[39] The approach of the Court Martial was, with respect gravely wrong. At page 42, it was specifically put to PW5 by the defence that force was used to extract the confessions. This clearly suggested that the free and voluntary nature of the confessions was being challenged. The Court Martial should have at that stage, conducted a trial-within-trial to determine the free and voluntary nature of the confessions. Evidently, this did not happen. The onus is not on the accused to prove that the confession was not free and voluntary but on the prosecution to prove beyond reasonable doubt that it was free and voluntary. See D.T. Zeffert et al, The South African Law of Evidence, Lexis Nexis, 2003 at p464 on wards.
[40] I should mention that although no specific acts of force, compulsion or even incentives were put to PW5 in cross-examination, the fact that the free and voluntary nature of the confessions was questioned, had to put the Martial Court on the qui vive. There was no need for the accused person to give evidence regarding the force, threats or inducements offered before the prosecution had to set out to prove that the confessions were freely and voluntarily made. It was for the Military Police to show that no force or inducements were offered. The accused could only have adduced evidence if they wished, to rebut evidence in proof of the free and voluntary nature of the confession.
[41] There is another important aspect of this. Confessions should be made to independent persons and in this case, who are not part of the Military Police. The circumstances in this case, considering that the confessions were made to the investigating officer, were clearly not admissible at law and could not properly found a conviction in civil Courts in Swaziland. See generally section 226 of the Criminal Procedure and Evidence Act.
[42] Another curious feature is that nowhere in their statements do the Military Police ever say that they cautioned the suspects in terms of the Judges’ Rules prior to interrogation. They were never told that they had a right to remain silent and not to say or record any statement. Whatever confession may have been made in absence of a mandatory caution should not be allowed to stand. See Patrick Sondano Mwanza vs The State CLCLB-000009-07; where McNally J.A. said:-
“What happened to the Judge’s Rules? What happened to free and voluntary statements and of confessions? What happened to section 228 of the Criminal Procedure and Evidence Act? Why did the Magistrate not stop these witnesses from giving what was clearly inadmissible evidence of a most prejudicial nature?”
[43] I am of the view that all the above infractions serve only to impugn the conviction. The Court Martial in my view, relied on inadmissible evidence in returning the guilty verdict and there is no way in which such blatantly inadmissible and unreliable evidence can be allowed to stand and influence a conviction in such a major way. All the proper rules and procedures of investigation must be followed to the letter. I therefore find that the conviction of Accused No.2 was wrong and ought not to have been allowed.
[44] Another issue that I find was queer indeed was that all the confessions made by the accused persons in this case, which, as will appear in respect of Accused 3 as well, were apparently not reduced to writing. It would appear that all that was relied on in relation to the so-called confessions, was the ipse dixit of the prosecution’s witnesses. Normally, confessions made should be reduced to writing and properly recorded, as stated earlier, before an independent office like a Magistrate. More therefore meets the eye regarding the confessions in this matter.
Conviction of Accused 2
[45] Accused 2, on the other hand, was convicted largely on the basis of the evidence of an accomplice, namely Doctor Dube of Ncabaneni. Dube testified that on 13 November, 2006, at about 22h00hrs, Accused 2 came and sold him about 200 litres of petrol contained in 8 x 25litres containers, which were subsequently loaded in Dube’s vehicle. The two men proceeded to the latter’s home in Mbikwakhe, where they emptied the same into a drum and Dube gave Accused 2 E800.00 in return.
[46] PW2 further testified that some days later, Accused 2 came to him with the Military Police and told him that things had gone wrong. It is his evidence that he was at that point ordered by the said police to relate what had happened and he obliged. The police took the empty drum and ordered him to write a statement which he did. He further testified that the fuel was very cheap and he therefor yielded to the temptation to buy it for his transport business.
[47] I interpose to mention that it appears that Accused 2 had, like Accused 1, not been warned of his rights in terms of the Judges’ Rules. What he said, including any confession and any pointing out he made, in the absence of the mandatory caution, cannot be properly used to convict him. Secondly, it is clear that PW2 was an accomplice and could have been properly charged for receiving property knowing it to have been stolen. If his evidence is anything to go by, he should himself have been warned in terms of the Judges’ Rules before saying whatever he would have wished to say, including what he said which implicated the said accused person.
[48] His position as an accomplice, places him in a very special category, warranting that the trial Court be on a qui vive regarding all the essential aspects of his evidence. First, he should have been introduced to the Court Martial as an accomplice in which case the Court Martial would have warned PW 2 of his special category and that he would have to tell truth so that the Court may at the end decide, on the basis of the quality of his evidence, if the Court was convinced that he had told the truth, grant him immunity from prosecution in respect of the offence he had himself committed. Furthermore, the Court would, have had to warn itself of the inherent dangers of willy-nilly relying on his evidence. It is clear that it did neither.
[49] This is referred to as the cautionary rule. The best formulation thereof and which has been accepted as accurately reflective of the position in this jurisdiction as well, is to be found in S vs. Hlapezula and Others 1965 (4) SA 439 (A) at 440 D-H, where the Court, per Holmes J.A. said:
“It is well settled that the testimony of an accomplice requires particular scrutiny because of the cumulative effect of the following factors. First, he is a self-confessed criminal. Second, various considerations may lead him falsely to implicate the accused, for example, a desire to shield a culprit or, particularly where he has not been sentenced, the hope of clemency. Third, by reason of his inside knowledge, he has a deceptive facility for convincing description – his only fiction being the substitution of the accused for the culprit. Accordingly…there has grown up a cautionary rule of practice requiring (a) recognition by the trial Court of the foregoing dangers, and (b) the safeguard of some factor reducing the risk of a wrong conviction, such as corroboration implicating the accuse din the commission of the offence, or the absence of gainsaying evidence from him, or his mendacity as a witness, or the implication by the accomplice of someone near and dear to him; see in particular R v Ncanana 1948 (4) SA 399 (A) at 405-406; R v Gumede, 1949 (3) SA 749 (A) at 758; R v Nqamtweni and another 1959 (1) SA 894 (A) at 897G-898D. Satisfaction of the cautionary rule does not necessarily warrant a conviction, for the ultimate requirement is proof beyond reasonable doubt, and this depends upon an appraisal of all the evidence and the degree of the safeguard aforementioned.”
[50] It is clear that the Court Martial did not apply the cautionary rule in its wholesale acceptance of the evidence of PW2, who is in any book, a self confessed criminal. Of PW 2, the Court, in its judgment held there:
“PW2’s evidence was clear and unwavering in the sense that he told the court that he bought 210 litres of petrol (unleaded) from accused No.2 whom they meet in their transport business. Accused No.2 was supposed to give evidence under oath to try and refute the damaging statement by the civilian witness.”
The reliance on the evidence of an accomplice, unaccompanied by the application of the cautionary rule undermines the safety of the conviction in a major way. There is no ruling on the truthfulness of PW2 as an accomplice witness and as to whether there was independent corroboration of the essential aspects of his evidence.
[51] I should mention in this connection that it is not correct that an accused person should always give evidence under oath to rebut allegations tending to inculpate him. Generally, he has a choice whether to give evidence under oath; make an unsworn statement or to remain silent. The nature and quality of the evidence will determine whether an adverse inference against him should be made in the event he remains silent.
[52] If the evidence against him is bad, inadmissible or of so romancing a character such that it cannot be believed, the Court may, even if he remains silent, properly acquit and discharge him. The onus, it must be remembered, is always on the prosecution to prove the accused’s guilt beyond reasonable doubt. It is clear therefor that the Court Martial’s approach to PW 2’s evidence and the weight it attached thereto, was flawed. I accordingly find that the conviction of Accused 2 is not safe and the certitude of guilt returned against him was wholly unjustified.
[53] I should make one major observation regarding the guilty verdicts against Accused 1 and 2. It is this: there was no evidence, save the inadmissible confessions, that any diesel was stolen. No traces of it was found with the accused persons nor was any nexus of any diesel with them in anyway established. There was simply no evidence that they purloined any diesel, let alone the 400 litres reflected in the charge, which is a big quantity.
Conviction of Accused 3
[54] Last, but by no means least, I turn to the evidence mounted against the Accused 3. I should state for future guidance that he should have been charged separately from his co-accused since he was charged for a totally different offence and quantity of fuel altogether. It is neither advisable nor desirable to charge different people of different statutory or common law offences in one charge sheet or indictment even if the offences may be related.
[55] The conviction of the 3rd Accused is equally mystifying. The “talismanic” evidence against this accused person was that of PW5, Corporal Jethro Bongani Dlamini, adduced on oath. He, as stated earlier, is a member of the Military Police. It was his evidence that on 15 November, 2006, after seeing the petrol pumps at Phocweni Barracks, he proceeded to Etikhumbeni, near the petrol pumps. There he found one Otto Dlamini and they asked for permission to search a certain house. I interpose and state that it is not clear whether they had a warrant or authority to conduct the search as this issue was never addressed in evidence.
[56] There, it was his evidence, they found two 25 litres containers full of petrol. Otto informed them that the containers were left by Accused 3 at around 17h00 and that he would collect same the following morning. PW5 seized the containers and told Otto to tell Accused 3 that he should report at the Garrison the following morning. The containers were exhibited before the Court Martial. It was PW5’s further evidence that Sgt. Zulu Maphalala also called Accused 3 on his mobile telephone to alert him to report to the Garrison as aforesaid.
[57] It is claimed by PW5 that the said accused person told them that the said containers full of petrol were his and that he had obtained the same from Rob’s Filling Station and he produced the receipt which was allegedly exhibited during the trial. It was not objected to on production by the defence. Accused 3, it was further testified, was taken by the military police to Rob’s Filling Station where they found a Mabuza man who admitted that the receipt belongs to the establishment and that it was issued to persons who pay for fuel in installments but not to those who purchase for cash. The latter, Mabuza told him, were favoured with computerised receipts. Robert Kirk, the proprietor, allegedly concurred with Mabuza and he filed an affidavit that was received and used as conclusive evidence during the trial and on which the certitude of guilt against Accused 3 was returned.
[58] In its judgment, the Court Martial said the following regarding the conviction of Accused 3 at page 59:-
“Thirdly, there was 2 x 25 litres of petrol that was discovered at Tikhumbeni a few metres from the depot which led to the arrest of accused No.3 and whose origin has been explained above and 218 litres of petrol admitted by PW2. The aforementioned evidence show (sic) beyond any reasonable doubt that indeed petrol was stolen from the pumps at Phocweni on or about the night of the 13 November, 2006.”
[59] At page 61 of the record, the Court Martial proceeded in respect of Accused No.3 as follows:-
“Accused No.3’s offence and degree of liability has already been discussed above. He had in his possession of petrol he received knowing it was stolen. The reason to suggest that he had knowledge that it was stolen is the fact of trying to hide the origin of the petrol by producing a false receipt from Robert Kirk’s fuel station and later going to the MPs to apologise for a lie. He failed to explain why he produced a false receipt. It is not given for a trained soldier to enrich yourself with an item that knowing very well that it has been stolen. It is very serious when the receiver thereof knows that the thing stolen belongs to the USDF. In terms of section 20 the punishment for such an accused is the same with the perpetrator of the offence.”
[60] The correctness of some of the statements and findings are highly dubious. There is no evidence, particularly beyond reasonable doubt, that the fuel allegedly found with Otto was that stolen from Phocweni. There is just no admissible evidence to that effect. Suspicions, however honestly and genuinely harboured cannot, without evidence, be catapulted to proof beyond reasonable doubt, which is a very high standard indeed.
[61] One other disconcerting issue is that according to the charge sheet, defective as it was, 218 litres of petrol were stolen. 200 of those, according to the prosecution’s evidence, was sold to PW2. The question then becomes, how were the 50 litres of petrol then recovered from Accused No.3 if indeed the amount of litres reflected in the charge sheet is correct. Accused No.3 would only have had 18 litres at his disposal. This renders his version, if at all given to PW5, reasonably possibly true in the circumstances. I will deal with this aspect in greater detail later.
[62] I am of the view that the evidence adduced by PW5 against Accused 3 was not just of impoverished quality. It was also inadmissible and highly unreliable. PW5 testified as to what Otto told him about the fuel and this renders whatever he may have told PW5, if at all, inadmissible hearsay because Otto was not called as a witness. There is therefor no admissible evidence that Accused 3 brought the fuel in question into the house. It appears, in any event, that the house was not Accused 3’s and there is no evidence that he was in possession of the fuel in question as the Court Martial apparently held.
[63] Furthermore, I do not understand why the exhibits were seized in the absence of Accused 3 who had allegedly been implicated by Otto. The accused should have been properly warned of his rights as a suspect and told that he had a right to remain silent in terms of the Judges’ Rules. This did not happen from the evidence. For that reason, whatever confession was made orally by him, in absence of a caution, should not have been allowed to stand. Furthermore, as indicated in the earlier cases, the procedure for recording a proper confession was also not followed. The alleged confession could not cure the poisoned nature of the evidence relied on by the Court Martial.
[64] Equally disconcerting was the adduction of the evidence regarding the receipt allegedly given to the Military Police by Accused 3. The evidence of what Mabuza told PW5 is clearly hearsay because Mabuza was also not called as a witness. Further and importantly, in terms of section 86 of the Code, witnesses on whose evidence reliance is sought to be placed must be present. The said section reads as follows:-
“(1) Every witness appearing to give evidence at a trial by a court martial shall give his evidence viva voce and on oath.
(2) If through incapacity a witness is unable to attend court to give evidence, the court martial may hear the evidence of such witness at his home or at any other place where the witness maybe, in the presence of the accused, his defending officer and the prosecutor.”
[65] It is therefore clear that the admission of the affidavit of Robert Kirk was contrary to the provisions above and so was reliance on what both Otto and Mabuza would have told the Military Police. In relation to the affidavit, the question is: how can one cross-examine an affidavit? So critical is the presence of the witnesses that in terms of section 86, if a person cannot attend on account of ill-health, then, the Court Martial may have to go to where the witness is, thus giving credence to the idiom to the following effect, “If Mahomed cannot come to the mountain, then the mountain must go to Mahomed”.
[66] There is no reason cogent or otherwise as to why Kirk was not called to testify. The reception of his affidavit in lieu of his presence, as stated above, was clearly wrong. It therefore follows that the finding made by the Court regarding the receipt was also incorrect. There was no proper basis, in view of what I have said above, as to why the Court could emphatically find, as it did, that the receipt was attained fraudulently as there was no admissible evidence before the Court Martial on which that far-reaching finding could be properly predicated. I should mention in that regard that there are few and circumscribed situations in which affidavits are accepted in terms of the Criminal Procedure and Evidence Act. There appears to be no provision for such a procedure under the Military Code.
[67] At page 58, the Court Martial, amongst other findings, held that Accused 3 had gone to the Military Police on the next day to apologise for telling a lie. I did not find this piece of evidence in the record. Even if it may have escaped my attention, it is still clear that there was no proper caution administered to the accused persons which fact would therefore affect the admissibility of any confession they may have made, as adverted to earlier in the judgment. I unhesitatingly come to the conclusion that the case against this accused person was weak and in view of what I have said above, the verdict returned cannot be sustained.
[68] The last issue for determination and which affects all the accused persons, is that they were not afforded an opportunity to address the Court in mitigation of sentence once they had been adjudged to be guilty. This was a fundamental irregularity as the personal circumstances of the accused persons were not considered at all. The Martial Court stated that the extent of the theft had been going on and posited that there could have been syndicates purloining the fuel. This finding seems to have weighed against the accused persons.
[69] I may also mention that there was no proof that Accused 3 knew that the fuel had been stolen. There was no evidence led to prove that fact nor was a proper finding made in that regard. Also of note is that the sections under which the accused persons were charged provide a penalty of imprisonment. They were not awarded that. No reasons are given as to why that was the case and how the discharge, in view of the punishment provided under section 20 of the Code was arrived at. I just mention this issue en passant, without making any definitive ruling or determination thereon.
[70] In the premises, I find that this is a proper case in which the proceedings resulting in the Applicants’ dismissal from the employ of the 3rd Respondent ought to be set aside with costs. The foregoing constitute my reasons for so holding.
DELIVERED IN OPEN COURT IN MBABANE ON THIS THE 4TH DAY OF JUNE, 2010.
________________________
T.S. MASUKU
JUSTICE OF THE HIGH COURT
Messrs. Mabila Attorneys for the Applicants.
Attorney-General’s Chambers for the Respondents.
