IN THE HIGH COURT OF ESWATINI
HELD AT MBABANE REVIEW CASE No. 60/15
In the matter between
SAMUEL N. SIMELANE
Neutral citation: Rex Vs Samuel Simelane and Sibusiso Gadlela (60/2015)  SZHC 171 (10 September 2019)
Coram : MAMBA J.
Considered : 10 September 2019
Delivered : 10 September 2019
Criminal Law – Accused charged with a Contravention of Section 12 (I) (a) of the Pharmacy Act 38 of 1929 (as amended). Pleads not guilty and Crown offers no evidence. Accused entitled to a verdict of acquittal as per dictates of Section 6 of the Criminal Procedure and Evidence Act 67 of 1938 (as amended). Simply excusing the accused from the trial is not sufficient compliance therewith.
 The two accused persons herein made their first Court appearance on 07 July 2015. The charge sheet alleged that they were both guilty of contravening Section 12 (1) (a) as read together with Section 12 (1) (i) of the Pharmacy Act 38 of 1929 (as amended). The substance of the charge is that on the 01st day of July 2015 they were found at Ngwenya Border Gate in possession of 74.91K of dagga, which is a ‘potential poisonous substance.’ The said contraband was found inside a motor vehicle in which the accused were.
 The first accused was represented by Counsel whilst the second accused conducted his own defence.
 On being arraigned, the first accused pleaded guilty to the charge and the second accused pleaded not guilty. Immediately thereafter the Public Prosecutor informed the Court that:
‘I will offer no evidence against the second accused and I will lead evidence with regards to the first accused;’ and he proceeded to lead the evidence of 7180 Constable Busa Dlamini. This witness narrated how on the day in question he had searched motor vehicle NSD
845 AM at the Ngwenya Border Gate and found the said dagga. The said motor vehicle was being driven by the first accused and the second accused was a passenger therein. The evidence of the Police Officer was not disputed by any of the accused persons.
 At the close of the case for the crown, the record indicates that the first accused thereafter closed his case without offering any evidence. After submissions by the crown, the first accused made no submissions and he was accordingly found guilty as charged and subsequently sentenced to pay a fine of E10 000.00 failing which to serve a term of 1 year of imprisonment.
 From the above narration of the brief events that took place in Court during the trial, it is plain that there was no verdict delivered pertaining the fate of the second accused person. There ought to have been a verdict inasmuch as he had pleaded to the charge. Again, it is not clear from the court record when the second accused was discharged from the proceedings. One can only assume that it was immediately after the Crown Prosecutor informed the court that he would lead no evidence against him. I say so simply because there is no indication that he was ever called upon to either cross-examine the crown witness or to open his case.
 Because the second accused had pleaded to the charge, and the crown offered no evidence against him, he was entitled to a verdict of not guilty
to the charge. The failure by the crown to lead evidence against him was in effect a withdrawal or abandonment of the charge against him. To simply discharge or excuse him from the proceedings without a verdict was irregular and incompetent. Section 6 of the Criminal Procedure and Evidence Act 67 of 1938 (as amended) provides as follows:
‘The Attorney-General may, at anytime before conviction, stop any prosecution commenced by him or by any other person; but, in the event of the accused having already pleaded to any charge, he shall be entitled to a verdict of acquittal in respect of such charge.’
 In The King VS Rose Dlamini and two others (18/2014)  SZHC 344 (22 September 2014), the Court stated as follows:
‘ In view of the fact that the 2nd and 3rd accused had already pleaded to the charge, they were, in law, entitled to a verdict following abandonment of the prosecution against them. To merely note that the charge was being withdrawn against them was not enough. They were entitled to a verdict and the only legally permissible verdict in the circumstances was one of not guilty. …
See also Director of Public Prosecutions V The Senior Magistrate, Nhlangano & Another, 1987 – 1995 (4) SLR 17 @236 b – c.’
 For the above reasons, I make the following order:
8.1 The second accused (Sibusiso Gadlela) is hereby acquitted and discharged herein.
8.2. The conviction and sentence imposed on the first accused (Samuel N. Simelane) is hereby upheld or confirmed.