Mabundza vs Rex (286/2017) [2018] SZHC 114 (04 June 2018);

 

 

IN THE HIGH COURT OF SWAZILAND

                                                                              

   

HELD AT MBABANE                                                                     CASE NO.  286/17

                                                                                                                

                                                                                                                                     

In the matter between:           

 

SABELO MABUNDZA

                                                                                 

and

 

                                                                             

REX

 

Neutral Citation                      :           Sabelo Mabundza vs Rex  (286/17 [2018]  

SZHC 114    (4 JUNE 2018)

 

Coram                                     :           MABUZA – PJ

Heard                                      :           16 MARCH 2018

Delivered                                :           4 JUNE 2018

 

SUMMARY

Appeal against sentence – In that the sentences in respect of two counts should have been ordered to run concurrently instead of consecutively – Appeal succeeds and sentences ordered to run concurrently.

 

 

EX- TEMPORA RULING

          MABUZA –PJ

[1]     In this matter the Accused filed an appeal on the 1^st October 2014 having been convicted on the 1^st March 2014 at the Simunye Magistrates Court in the Lubombo District.

 

[2]     He together with Nkululeko Siphamandla Lukhele of Dvokolwako area (co-accused) were convicted in respective of two counts of robbery and sentenced to 5 years imprisonment per count.

 

[3]     The charges are:

                    Count 1

            The accused persons are charged with the offence of Robbery in that upon or about the day of 1^st March 2014 at or near Hlane area in the Lubombo region, the said accused persons either one or both of them acting in the furtherance of a common purpose did unlawfully stab Nhlanhla Magagula by intentionally using force and violence to induce submission did take and steal from him certain properties, to wit a Samsung C6 Cell phone valued at E400.00 his property or in his lawful possession, and did rob him of the same.

 

Plea     :           Both Accused persons pleaded guilty in respect of Count 1.

                        Sentence :       5 years imprisonment

 

                       

 

Count 2

            The accused persons are charged with the offence of Robbery in that upon or about the day of 1^st March 2014 at or near Hlane area in the Lubombo region, the said accused persons either one or both of them acting in the furtherance of a common purpose did unlawfully by grabbing her tightly with her clothes around her waist and by intentionally using force and violence to induce submission by Hlengiwe Manana, did take and steal from him certain properties, to wit a Nokia 1200 Cell phone valued at E300.00 his property or in his lawful possession, and did rob him of the same.

 

                        Plea     :           Accused 1 pleaded not guilty while Accused 2 pleaded

guilty.

                       

[4]     The record of proceedings is said to be missing through no fault of the Accused persons.

 

[5]     I am told that the Accused are first offenders and have no previous convictions.

 

[6]     The amounts in the matter involve small items worth E400.00 (first count) and E300.00 (second count):

1. In the first Count the Accused stabbed the complainant in order to induce submission.  Because the record is missing the Court has not been told how serious the injury was.

 

1. In respect of Count 2, the method used to induce submission is tantamount to assault common.

 

1. The offences occurred on the same day i.e. on the 1^st March 2014 and this factor should have been taken into account for the sentences to be ordered to run concurrently.

 

[7]     Having taken into consideration the above, the appeal succeeds in part.  The order of the Court a quo that the sentences run consecutively is hereby set aside.  The sentences are hereby ordered to run concurrently (and backdated if need be).

 

[8]     The Registrar of this Court is ordered to convey my order to Nkululeko Siphamandla Lukhele.

 

 

 

______________________

Q.M. MABUZA

PRINCIPAL JUDGE

 

 

 

          For the Applicant          :         Mr. N. Ndlangamandla

          For the Respondent       :         Ms. B. Ndlela