IN THE HIGH COURT OF ESWATINI
Review Case No. 16/2016
In the matter between
Neutral Citation: Rex V Mxolisi Mashaba and Mpendulo
(16/2016)  SZHC 170 (10 September
Coram : MAMBA J.
Considered: 10 September 2019
Delivered : 10 September 2019
 Criminal Law – Sentence on a conviction for Robbery – Section 313 (2) of the Criminal Procedure and Evidence Act 67 of 1938 (as amended). No part of Sentence may be suspended for Third Schedule crime. Robbery Third Sentence offence.
 Criminal Law and Procedure – Sentence on conviction for Robbery – court a quo suspending portion or part of sentence contrary to Section 313 (2) of Act 67 of 1938. Sentence set aside as incompetent or irregular. Review court at large to impose appropriate sentence
 The accused, Mxolisi Mashaba, appeared before the Siteki Magistrate’s Court on a charge of Robbery. He was co-charged with one Mpendulo Ndzimandze who was the second accused in the matter. At the close of the case for the crown, the second accused, who conducted his own defence, was acquitted and discharged in terms of Section 174 (4) of the Criminal Procedure and Evidence Act 67 of 1938 (as amended) (hereinafter referred to as the Act).
 The first accused was duly represented by Counsel. His application for a discharge at the close of the crown case was dismissed and he was called to his defence. This ruling was handed down on 29 April 2013. Subsequent to this ruling, he gave evidence in his own defence and did not call any other witness to testify on his behalf.
 On 19 November 2013 the accused was convicted of the crime of Robbery and three days later, he was sentenced to a term of four (4) years of imprisonment, 1 year of which was conditionally suspended for a period of 2 years. The sentence was backdated to the 27th day of July 2011; that being the date on which he was formally taken into police custody after being released from hospital.
 The trial and conviction of the accused appears to be in order. The sentence is not in order, however. Robbery – being the crime for which the accused was convicted – is a Third Schedule offence in terms of the Act. In terms of Section 313 (2) of the Act, no sentence or part thereof may be suspended on conviction for an offence listed in the Third Schedule. Consequently, the suspension of a part of the sentence in this case was clearly incompetent and not in accordance with the said provisions of the law.
See in this regard the following cases: Rex V Sikelela Myeni (25/2012) 2017 SZHC 218 (26 October 2017) and R V Mancoba Mkhontfo, Rev. Case 26/2010, where this quote stated:
‘ Rape, the offence for which the accused was convicted and sentenced is, together with MURDER and ROBBERY and the attempt conspiracy and incitement to commit such offences, is listed in the third schedule in the Criminal Procedure and Evidence Act 67 of 1938 (as amended). Section 313 of the Act stipulates that no part or portion of a sentence in respect of such offences may be suspended. Plainly therefore the trial court was in error in suspending a portion of the sentence that was imposed on the accused. Vide Sandile Shabangu V R Criminal Appeal 15/07 delivered in 2007 (unreported), R V Gumede 1970 – 1976 SLR 424. The case of Stanley Makhakha Dlamini V R 1977 1978 SLR 66 was in my respectful judgement rightfully overruled in the case of Mngomezulu Sibusiso and Others V R 1987 – 1995 (3) SLR 179 at 183F-G. See also Mbhamali Sipho and Another V R 1987 – 1995 (4) SLR 116 at 118, Lucky Nhlanhla Khumalo V R High Court Criminal Appeal 3/2009 also unreported judgment delivered on the 20th August 2009. These cases were all reviewed and referred to by this Court in R V Sabelo Dlamini Review Case No. 66/2009 judgment delivered on the 25th January 2010.’
See also Rex V Khumalo and Another (75/2016)  SZHC 85 (05 April 2018).
 The sentence imposed by the court a quo is hereby set aside because of the irregularity already stated.
 The accused was sentenced on 22 November 2013 and his sentence was backdated to the 27th day of July 2011. That is about 8 years ago. He has obviously served that unsuspended part of the sentence. It is a matter of grave concern to this court that this matter was only submitted to this court for automatic review on 09 August 2019. That is a rather inordinate period from the time of the conclusion of the matter in the Court below. Again, there is sadly no explanation from any one about this delay. That the Court has to deal with such matters after such a long wait is a serious blemish to our criminal justice system. This case is not an isolated one. There are many such others.
 A sentence of four years of imprisonment for Robbery would appear to me to be an appropriate one, even though slightly on the lenient side. The sentencing Court, however, was of the view that this was the appropriate sentence in the circumstances. There is no indication on the Court file that an appeal or challenge was filed by the accused in this regard.
 A cursory calculation would suggest that the accused finished serving his 3 year sentence in or about July 2014. That is about 5 years ago. Because of this fact, I think it would be a grave injustice to the accused and the administration of justice to re-instate the suspended part of the sentence at this stage, i.e, five years after the accused had finished serving his sentence.
 For the foregoing reasons, I am of the view that the following order must be made in the circumstances, namely:
9.1 The conviction of the accused is hereby confirmed or upheld.
9.2 The sentence of four years of imprisonment imposed on the accused is hereby set aside and is hereby substituted with a sentence of 3 years of imprisonment.
9.3 The sentence shall be deemed to have commenced on 27 July 2011.