IN THE HIGH COURT OF SWAZILAND
JUDGMENT
Criminal Review Case No. 3455/2017
In the matter between
REX
AND
MSIMISI NTATE DLAMINI
Neutral citation: Rex v Msimisi Ntate Dlamini (3455/2017) [2018] SZHC 43 (15 March 2018)
Coram: MAMBA J
Considered: 15 March 2018
Delivered: 15 March 2018
Criminal law – Arson – essential elements thereof. The crime of Arson consists in unlawfully setting an immovable structure on fire with intent to injure the owner thereof. The property destroyed must constitute immovable property. Three factors usually regarded are (a) whether the nature of the thing is such that it is capable of acceding to the immovable; (b) whether the thing is effectively annexed physically or by weight; (c) whether the owner of the thing intended the annexation to be permanent.
[1] This matter comes to court, today, on automatic review. One very disturbing feature of this case, and regrettably, this seems to be true of most if not all the matters that are forwarded to this court on automatic review, is that this case was concluded or finalised by the court below on 27 April 2016. That is about 23 months ago. That, by all accounts, is a very long time for a review. The folder in which the court record of the proceedings is contained has not been endorsed by the trial Magistrate. This endorsement would have indicated when the matter was transmitted to this court by the trial Magistrate, and, perhaps when it was received by the Registrar of this court.
[2] The missing information referred to above would, if supplied, assist the court or the Registrar of this court to identify the inordinate delays in such matters and thereby put in place the necessary interventions to address them. Whilst these delays may appear to be minor; especially in cases such as the instant one, such delays may have huge or far reaching effect or consequences where an accused person has been erroneously convicted and sent to jail or prison without the option of paying a fine; or where a fine has been imposed but the accused is unable to raise such fine. That would be a total failure of justice and a damning indictment to our criminal justice system in general.
[3] The Accused, who was unrepresented, first appeared before the Manzini Magistrate’s Court on 04 April 2016 on a charge of Arson. The charge sheet was framed as follows:
‘The accused person is charged with the offence of Arson.
In that upon the 30th March 2016 at about 1100hrs at or near New Thulwane area in the District of Manzini, the said accused person did wrongfully, unlawfully and intentionally set on fire a house and the following items valued at E12 080-00 were burnt ---.’
[4] On being arraigned, the Accused pleaded guilty to the charge. The Crown led the evidence of the complainant to prove the commission of the offence. In his defence, the Accused admitted having set the complainant’s house on fire. He alluded to and attributed his actions to a misunderstanding he had with the complainant regarding a mobile telephone. The Learned trial Magistrate, rightly, in my judgment rejected this as a defence to the charge. The Accused was accordingly found guilty as charged. He was sentenced to pay a fine of E4000-00; failing which to undergo imprisonment for a period of four years. Three-quarters of that sentence was, however, conditionally suspended for a period of three years.
[5] The charge sheet as stated in para 3 (supra) is less than accurate. One of the essential elements of the crime of Arson is that the structure set alight must be an immovable one. That allegation is missing in the charge above. The argument that presupposes that a house is by necessary implication an immovable structure is, notionally flawed. Not all houses are immovable objects. See the judgment of this court in Rex v Mfanukhona Simelane & 2 Others (379/2013) [2017] SZHC 195 (20 September 2017) where the court stated as follows:
‘[22] In R v Dumsane Solomon Dlamini 1979-1981 SLR 193 at 194A-E, the court per Cohen J stated as follows:
“The crime of arson has been defined by PMA Hunt in South African Criminal and Procedure Vol II 768 as consisting in ‘unlawfully setting an immovable structure on fire with intent to injure another’. Academicians have argued that it may well have been better policy to regard any building used as a dwelling or for the storage of property as sufficient, even if not technically immovable (ibid 798). Nevertheless as the law stands the demolished property must constitute immovable property as understood in our law. Three factors usually regarded are: (i) whether the nature of the thing is such that it is capable of acceding to the immovable; (ii) whether the thing is effectively annexed physically or by weight; (iii) whether the owner of the thing intended the annexation to be permanent. See Hunt at 769 and MacDonald Ltd v Radin N.O. And The Potchefstroom Dairies and Industries CO Ltd1915 AD 454 at 460. See also R v Mataung 1953 (4) SA 35 (O) where a two judge court held in an arson case that a “native” grass hut had in the absence of evidence that the hut was of immovable nature, not been proved to be an immovable structure. The main ground for this conclusion, as I read this judgment, was that there was no evidence as to the nature of the attachment of the hut to the ground as well as an absence of evidence as to whether the hut could be removed without causing serious damage and with what purpose and by whom it has been erected. In Standard-Vacuum Refining Co of SA (PTY) Ltd v Durban City Council 1961 (2) SA 669 (A) van Winsen AJA dealt fully with this subject, especially at 677 et seq. In order to ascertain whether the intention by the owner was to annex the building permanently to the ground according to the learned judge at 678A regard must be had to the following physical features, namely, “the nature of the movable, the method and degree of its attachments to the land or other immovable and whether it can be readily removed without injury to itself or to the land or immovable to which it is attached”. He goes on to state at 678B: “If, however, an examination of the physical features produces an equivocal result in the sense that from the examination of such features, no inference can be drawn that the attachment was made with an intention of permanency or otherwise, the intention of the annexor may be decisive”.
‘That is not the case in this matter. The Crown witnesses were able to describe the relevant houses. They were not your ordinary stick and mud bee-hive huts. The walls were made of poles that were fixed to the ground, stones and mud. They could not, in the circumstances, be readily moved without damage to themselves or to the land to which they were affixed or attached.’
[6] In the present matter, the house in question was constructed of poles fixed to the ground, sticks and mud. The roof was made of corrugated iron sheets. It was valued at E7, 000-00, the complainant said. Pictures of what remained of the structure were exhibited in court and from this evidence, the trial Magistrate was satisfied that the house in question was an immovable structure. This assessment or analysis of the evidence cannot, in my judgment, be faulted. Because of this fact, there was no miscarriage of justice in this case. The charge sheet whilst obviously deficient, did adequately inform the Accused of the charge he was facing.
[7] For the foregoing, I hereby certify that the proceedings in the court below were in accordance with real and substantial justice.
[8] The Registrar of this court’s attention is drawn to the observations of the court in paragraphs 1 and 2 above.
MAMBA J
