IN
THE HIGH COURT OF SWAZILAND
Cri.
Case No. 40/1996
In
the matter between
THE
KING
vs
Stanley
M. Dlamini
Bheki
J. Hadebe
Dan
S. Dlamini
Khisimusi
Myeni
CORAM
S.W.
SAPIRE, ACJ
FOR
CROWN
MR.
NDUMA
FOR
DEFENCE MR. B. SIMELANE
AND
MR.
D.LUKHELE
Judgment
(25/11/96)
During
the evening of 29th December, 1994 the Bishop Ncamiso Ndlovu,, who is
the complainant on count 2, while in the company of his son, now
deceased, and a security guard was accosted by three masked and armed
men who robbed him of his motor vehicle.
1
The
miscreants also in the assault on the Bishop and his companions and
in the course of the evening stole the Bishop's shoes, E150.00 in
cash and two bags of potatoes which were found in the Bishops's
garage. It is accused 2 and 4 who face an indictment alleging this
offence.
The
Bishop described how he was about to park his motor vehicle when
armed men wearing balaclava helmets emerged from the darkness and
surrounded him and his companions. One of these men demanded the keys
of the motor car in which they had been travelling. These the
complainant handed over, as one does not argue with a gun. The
robbers helped themselves to two bags of potatoes and bundled he
complainant's companions into the boot of the motor car. The
complainant himself was ordered to sit at the back seat of the motor
vehicle where he was later thrust and forced down to the floor of the
vehicle. During the ride that ensued his face was covered with a hat.
Eventually
the Bishop and those who were with him were after a long journey
dumped in the country.
One
of the assailants was left to guard them while the other two made off
in the vehicle. Because these people were masked by their balaclavas
the complainant could not identify his assailants.
Norman
Johnson was called, and introduced as an accomplice. He gave an
account of robbery in which he featured as "the third person"
who participated therein. I have the impression that in giving
evidence he tended to minimise his culpability. Such inconsistencies
as were to be found in his evidence, and there were some instances
where what he said in court did not accord with what one would have
expected from reading the summary of Ms evidence provided by the
prosecution, were not of such materiality that his evidence cannot be
relied upon. He is to be regarded as a credible witness. But as an
accomplice his evidence must be approached with caution and one looks
for some circumstantial evidence to satisfy oneself that his evidence
is the truth.
2
The
two accused deny their participation in the offence and it is the
question of their identification which is an issue in this case.
In
Masilela v The King an appeal case number 3 of 1989, it was observed
that in dealing with the evidence of an accomplice what is of
importance is that the trier of fact is fully aware of the
shortcomings in the evidence and gives proper weight and
consideration to them in reaching a decision on credibility. I am
aware as I have said that there are shortcomings in the evidence of
Mr. Johnson, Mr. Lukhele has pointed out that he was not consistent
in his account regarding the ownership of the firearm and how he came
to be in possession of it.
His
evidence as to whether he was invited to join the expedition is
confused. In some respects his account of the robbery does not tally
with that of the complainant Bishop. The differences and shortcomings
are however not on material issues and I have no doubt that he was
giving an account of facts which he witnessed on the evening in
question.
If
his evidence had stood alone it may have been dangerous and wrong in
law to accept his identification of accused two and four as his
co-perpetrators of the crime. But his evidence is confirmed by the
circumstances related by him regarding the plans of the accused
persons for the disposal of the motor car. He told of how he heard
the accused discussing their intention of taking the car out of
Swaziland and disposing of it in Namibia. It was with this in mind
that the unfortunate victims were taken for the midnight ride. If the
robbers had merely taken the car and left the Bishop at his home the
report would doubtless have been made, and the Police, one hopes,
would have alerted the Border Posts whose officers would have been on
the look out for a vehicle conforming to the description of the
vehicle stolen. The robbers must have been aware that the chances of
taking the car out of the country would have been very much reduced,
had they not ensured that no complaint would be made until long after
the event.
3
Johnson
the witness, was the person who was to guard the victims to buy
sufficient time for the other two to make good their get away and to
take the car for disposal abroad it is not surprising that Johnson
knew of the plan and was able to testify thereof and what he had
heard thereto to this court.
What
is confirmatory of his evidence are the entries in number 4's
passport. There was evidence from a border guard that accused number
4 passed through the border at Matsamo on the 30th December 1994,
that is the day after the robbery, and only hours after it had taken
place. The border guard did not see the car in which accused number 4
was a passenger but noted the vehicle's registration number. It was
later established and there is evidence before this court that this
was a false number plate and appropriate to another vehicle. The
person who accompanied the accused and who was the driver of the
vehicle gave his name as Terence Nkambule. This turned out to be a
false name and his passport was spurious.
The
passport of number 4 shows that he passed into South Africa through
Matsamo which is not the nearest or most convenient point of exit to
where he had been and when giving evidence Accused No. 4 could not
give a convincing explanation as to why he travelled a circuitous
route to his destination.
On
the same day accused number 4 crossed into Zimbabwe and thereafter he
went to Zambia. On the 6th of January, 1995 he made provision to
extend his stay in Zambia until the 14th of that month.
Up
to this point he crossed the boarders at posts through which ground
traffic passes. He however left Zambia by air on the 11th January
1995 arriving at what used to be called Jan Smuts Airport on the same
day. On the 12th of January , 1995 he returned to Swaziland.
What
is remarkable about this journey and its significance lies in the
fact that it commenced almost immediately after the robbery had taken
place.
4
It
also accords with what the accomplice says the accused said they were
going to do in order to dispose of the stolen vehicle. It would have
been remarkable if the accomplice could have known at accused number
4 was leaving or had left the country and used that fact to confirm
his identification of the accused.
If
his account were not true the explanation given by accused number 4
for his peregrinations is fanciful to say the least. His explanation
of taking a lift in a vehicle which turned out to have a false number
plate is one of a number of highly improbable features in his
evidence. His reasons for leaving the country through the remote
border post rather than through Oshoek which would have been the
nearest are also difficult to believe. His account that he went to
see a friend in Middleburg or Witbank and there found his friend
about to set off on a journey north may not be incredible in itself,
it is strange to hear that his friend asked him to accompany him on
this journey of unspecified duration and sponsor his expenses. More
incredible is that this man who had no resources at all should be
sponsored in a return journey to the Republic from Zambia by an
airfare from this friend of his. Of course the friend did not come to
support the accused with confirmatory evidence and no convincing
reasons were given while some effort was not made to support the
accused evidence with a testimony of the person who knew all about
it. Of course there is no onus on the accused and I merely remark and
observe that his case would have been stronger had he been able to
obtain the support. The journey of accused number 4 was exactly what
the accomplice said was his intention and I find in this evidence and
the accused's response thereto sufficient corroborative support for
the accomplice evidence, to find identification of the two accused
charged with the offence as being the persons who were associated
with the accomplice in the robbery.
This
is a case where the accomplice evidence is both credible and
confirmed by circumstantial evidence.
5
I
now turn to count one. It is accused 1,2 and 3 who are charged with
having committed the offence of armed robbery in the following
circumstances. On the 29th of July 1995 the members of the Da Silva
family and their friends were at home at Fairview in Manzini. They
appeared to have sat down to an evening meal when they were disturbed
by three armed men who had intimidated the watchman on guard outside
and forced him to call to Da Silva to open the door. Having got into
the living room which adjoins the kitchen one of the three man armed
with a firearm stationed himself at the kitchen door. The other two
held up the family members and took whatever cash they had.
Da
Silva was then taken by two of them to the bedroom where he was
forced to open the safe and hand over the contents thereof to his
assailants. The robbers took a briefcase containing E79 000.00 from
Da Silva in the bedroom and precious stones worth (E50 000.00) in a
bag, specialised gem scale used for weighing stones was taken, as
well as a case containing two cameras and accessory lenses. Later a
black National video machine which is a VCR with remote control was
also taken. There was evidence that there was a cassette in the VCR
which was being used to amuse the children while the adults were
otherwise engaged. When they left the house the miscreants also
demanded and took the keys to complainant's Mercedes.
One
of them seems to have told the complainant or his son that they were
only borrowing the vehicle and that it would be found in the vicinity
later. This turned out to be the case as the vehicle was indeed
recovered on the following day of the robbery. This does raise the
question as to whether the vehicle is rightly included among the
items stolen in the robbery. It was argued that this taking was
merely a furturn usus. This interesting academic question does not
have to be answered now but may be of some significance later.
6
The
accounts of the events of the evening as they unfolded at the home of
the complainant were given by the Crown witnesses Antonio Gumbane,
the watchman who had been on duty outside the house, Florio Da Silva
who was the complainant and his son Balen. Their accounts differ in
some minor respects but the fact of the robbery was established
beyond any doubt. I am satisfied that all three were truthful and did
not set out wilfully to misinform regarding their experiences.
Experience shows that different individuals witnessing the same event
do not always recall and recount their observations without there
being differences and discrepancies. The differences are not
necessarily indications of untruthfulness, but can arise through the
witnesses having different opportunities for observation, and
memories of differing degrees of reliability. In cases which come
before this court a witness will first make his statement to a Police
Officer.
The
content of the statement will be influenced by the skill of the
particular officer who recorded in the first instance. This skill is
not an evenly good among members of the Police Force. In most cases
the statement is further interpreted in the office of the Director of
Public Prosecutions and a summary is presented to the accused and the
court when cases are heard by way of summary trial. This summary
reflects what the prosecutor interprets to be important and in some
cases does not accord with the actual Police statement. To find this
to be a deficiency in the witnesses would be unfair to him.
In
many cases the witness could have given a statement in Siswati and
the content of the statement will reflect to some degree the
translation of the person taking that statement and the questions to
which he actually puts to the witness. In coming as I now do to the
question of identification these are considerations which have to be
borne in mind. As I say in the present case these considerations do
not affect the proof of the commission of the offence but have to be
taken into account in considering the identification of the
perpetrators of the crime. The commission of the offence is not
really in issue but those of the accused persons charged with its
commission have denied their participation.
7
Both
the complainant and his son Balen identified accused number 2 and
accused number three as two of the three intruders. They did so with
conviction and certainty and there is no reason to disbelieve or
doubt their good faith.
Much
was made by the defence over a confrontation and altercation between
the accused persons and some of the Da Silva family outside the court
room before the witnesses testified. I attach little importance to
that occurrence and I do not suspect that the crown witnesses were
then indicating to each other who was to be pointed out and
identified as one or other of the robbers. The witnesses knew that
the accused were going to be in the witness box and it is the easiest
thing in the world to point out those who they said were participants
in the crime. There is no reason why prisoners should be in areas of
the building to which the public have access and the incident which
took place should never have taken place as adequate provision is
made in the building to keep accused persons in custody from the
sight of the public before their appearance in court. It is to be
hoped that the officers concerned become more familiar with the cell
facilities and that no more incidents of this nature occur.
Nothing
turns on the incident as it does not in itself detract from the
identification by the complainants of the two accused persons
involved.
The
identification is however subject to more cogent criticism. In the
first place there is no indication in the summary of evidence that
the witness Da Silva would identify the two accused. In the summary
of Da Silva's evidence no mention is made about identification or of
the appearance of those who carried out the robbery. No summary of
the evidence of Baden was served. The defence could therefore not
have anticipated and prepared their case on the basis of such
evidence being as it is . The question arises why the case was
prepared and presented by the crown in this way. Why was there no
mention of identification in Da Silva Statement to the Police? Why
was he not at least asked to give a description of his assailants and
his answers recorded?
8
Even
more inexplicable is the failure of the Police to hold an
identification parade before calling Da Silva and his son to identify
stolen goods which were recovered. Such identification of the several
items of recovered goods took place at the police station in the
presence of the accused persons who were expressly or by implication,
indicated by the police to be the individuals responsible for the
robbery. Why identification of goods should be made in the presence
of the accused is not clear to me. But in any event it would be far
more important for the victims to be called upon to identify the
individuals charged with the robbery in a proper parade. No pointing
out at a parade, afterwards could have had any validity and the
identification here in the dock is subject to some serious criticism.
This does not mean that the identification by the complainant of the
two accused in court is to be dismissed out of hand but the weight to
be attached thereto is far less than if the pointing out of the
accused had taken place at a properly conducted identification
parade.
As
to the opportunity for complainants to identify the accused there is
some conflict as to whether all three of the intruders wore masking
balaclava caps. The watchman was positive that all three arrived so
clad. The Da Silvas, father and son, both say that two entered the
living room where the family were, their faces hidden by the
balaclava. The identity of the third person was never concealed .
They seem to agree that one of the intruders during the time that
they were in the house removed this balaclava and revealed his face
to the sight of the complainants for a comparatively long time.
The
defence argued that this was a most unlikely thing to have happened
for why should an intruder who has taken the trouble to conceal his
identity remove the balaclava during the course of the robbery. There
is no accounting for the way the robbers acted . It may be that the
individual concerned became so exited at seeing the loot that he
acted in this irrational way. But no argument can counteract the
direct evidence of the Da Silvas that this happened.
9
The
third man who on the crown case was number 1 remained with his head
covered and was not identified. However satisfied I was that the
identification despite its obvious deficiencies and defects was
honestly and sincerely made and that the complainants confidently and
correctly identified accused number 2 and 4 in the dock, such
identification alone is not sufficient to convict the accused so
identified. There is however other evidence which confirms the
identification.
It
was the existence of this other evidence that seemed to be proffered
as an excuse as to why no identification parade was not held. This is
what I understood from the investigating officer.
The
implication of accused No. 1 who was not identified by the Da Silvas
in the commission of the offence is proof by his possession of
several of the items stolen in the course of the robbery. Firstly
there are the precious stones which were taken from Da Silva. Simon
Hlophe to whom accused No. 1 is well known told of how the accused
brought the bag of stones to him in order that he should assist him
in the disposal thereof.
These
stones were later seized by the Police and identified by the
complainant as those stolen from him in the course of the robbery.
Accused number 1 said that he got the stones from somebody else.
Again this person is not produced as a witness and it is curious that
accused number 1 who is not a trader in these stones and apparently
he knows very little about them should have come into possession of
them in any other way.
The
stones were to have featured as an exhibit in this case, but through
gross negligence or worse, they have disappeared while in Police safe
keeping. This disappearance of an important and valuable exhibit
cannot be allowed to remain uninvestigated and I direct that this
judgment be furnished to the Commissioner of Police for necessary
steps to be taken.
10
It
is events such as this which erode public confidence in the law
enforcement authorities. It is however clear that the accused was in
possession of the stones which were later identified by the
complainant in the presence of the accused with no demur from him.
After
he had been arrested and according to Inspector Aaron Mavuso warned
in the usual manner on the 25th of August 1995 accused number 1 led
him to Nkwalini area where his mother's homestead is. There at the
accused's instruction the camera equipment comprising those items to
which I have already adverted were found. Also found there was the
gem scale. This item, the gem scale, is one which was imported from
Europe and according to Da Silva there is unlikely to be any other of
its nature in the country.
This
item accused number ... says was not found at his mother's home. Yet
the item is here before the court as an exhibit. The Camera equipment
the accused admits was his and he says he took it to his mother's
placed to be safe. He says the photographic equipment was given to
him by a man who who came from Maputo and that he had seen it in this
man's possession sometime long before the robbery had taken place.
Once again the individual who is said to be the source of the exhibit
and the person from whom it came is not before the court. The
complainant in identification of the equipment comprising the
photographic items was confident that it was that which had been
taken from his house. The equipment had been left with him as I
understand in pledge. The equipment was taken from that which was in
his possession and was kept in a case which he recognised.
Whatever
doubts there may be as to the identification of the goods stolen,
each specific item stolen, is dispelled by the fact of the
correspondence between the goods found and the goods stolen. It is
the same combination of items. Mavuso also stated that the gem scale
was found at the mother's place and this item was identified by Da
Silva quite positively in regard to its purchase and its origin.
11
The
accused had no answer or explanation for the presence of the scale at
his mother's place and was forced to deny that it had been found
there.
I
cannot accept that Mavuso found the scale somewhere else and
maliciously planted it on the accused. There is nothing to suggest
such a bizarre scenario. Also at his mother's homestead the accused
number 1 led Mavuso to a copse of guava trees and pointed out a spot
where an AK rifle serial No. 392589 was exhumed. This was together
with a matching magazine with eight live rounds of ammunition. The
firearm was wrapped in protective brown cloth and a plastic bag.
These were all exhibits before the court. The accused also led Mavuso
to Jinny Sibongjle Mamba from whom the precious stones later
identified by the complainant as his were recovered.
The
accused's possession of this array objects corresponding to those
which were stolen from the complainant is convincing evidence of his
guilt. The accused called his mother to confirm that no firearm had
been found at her homestead and that she and her son, Accused No. 1
had been assaulted and otherwise maltreated by the Police.
Her
evidence was poor and obviously fabricated to assist accused number
1. In rebuttal of her evidence a previous statement made by her was
produced. This statement was of course not proof of the truth of what
was stated therein. There may also be some valid criticism of whether
the document constituted a valid affidavit but whether the oath was
properly taken before the policeman or not it remained a statement
made by this witness. The effect of this statement is to entirely
discredit her.
And
her evidence must be disregarded in coming to any conclusion in this
case.
The
allegations of any assault on the accused or his mother were denied.
And 1 am satisfied that the pointing out which took place was not the
result of any untoward conduct on the part of the Police.
12
But
accused number 1 and his mother denied that the scale and the firearm
were found at his mother's residence. If they had claimed that these
items had been found as a result of unlawful pressure of some kind
the allegations would have been understandable . I did not understand
the allegations of unlawful pressure to have been made relatively to
the discovery of the cameras in respect of which the accused
attempted to give an innocent explanation.
Accused
number 1 was not identified by the complainant as he was clearly the
one of the intruders who kept his Balaclava on and held the firearm
during the robbery. Accused No. 2, apart from being identified by the
complainant and his son is connected positively to the robbery by his
admitted possession of, and attempts to dispose of, the National
video cassette recorder which was stolen. A video cassette recorder
was admittedly given by the accused to his friend Cynthia Mhlope.
Sipho Simelane testified that accused number 2 had offered to sell
him a video recorder and referred him to his girl friend from whom he
obtained the VCR.
Later
this VCR was taken into their possession by the Police. The
complainants were unable to say more about this VCR itself than that
it was similar to the one which was taken from them. Mr. Da Silva
claimed the unit to be his and explained that he had had it for some
time before it was stolen. Neither he nor his son was able to
distinguish it by its appearance from the many other models of the
same kind which are doubtless to be found in the country. When the
Police took possession of the VCR a cassette was lodged in the
appropriate slot.
This
cassette was identified as the same cassette which had been taken on
hire by the Da Selva family from the Mormond video shop. Miss Fiona
Henwood an employee of the video shop identified the cassette without
doubt as having been the one taken on hire from the shop where she
was employed.
13
She
produced a book used as a record of cassettes taken on hire and was
able to refer to an entry signed by Da Silva Junior acknowledging
receipt of the cassette on hire. The cassette was never returned to
her because it had been stolen. Baden Da Silva confirmed that he had
taken out the cassette on hire and acknowledged his signature in the
book. He also testified that the cassette was in the VCR when it was
stolen. The conclusion is inescapable that the VCR which the accused
number 1 gave to his girl friend and which was later seized by the
police and now features as an exhibit is the very unit which was
stolen from the Da Selva residence. Much play was made by the defence
regarding the number appearing in the cassette and it was suggested
that this number indicated that the cassette was not the one that
emanated from the Mormond Video Shop. I have studied Miss Henwood's
record of evidence very closely and 1 am satisfied that this number
did not feature at all in her identification of the cassette and that
identification is both positive and confident and given in good
faith. I do not find that the inability of the owner of the video
shop to identify the cassette was of any significance.
The
owner of the shop, the proprietor, has Miss Fiona and others to run
the shop for him and he has apparently very little to do in the
actual handling of the cassettes. It would be a coincidence beyond
acceptance as being true that this cassette which was found in the
video recorder emanated from any other source.
The
accused number 1 and accused number 2 each purchased a vehicle for
cash, each from a different dealer in Springs a day or two after a
large amount of money had been stolen from Da Selva in the course of
the robbery could of course be coincidental. The circumstances
surrounding the purchase of these vehicles is suspicious and there is
force in the argument that this evidence is a further indication of
the guilt of accused number 1 and 2, I do not think however that the
evidence is more than suspicious. It is probable that the accused
disposed of their illgot money in this way.
14
In
coming to my conclusion, however, I exclude any inference which may
be sought by the prosecution to be drawn therefrom,
In
the case of number three accused, different considerations apply. It
is true that he was identified by the Da Silvas as one of the three
intruders who robbed the complainant. Such identification is subject
to criticism I have made in considering the case of accused number 2.
There is however no evidence against accused number 3 apart from such
defective identification which would justify a conviction.
The
evidence of him being in possession of, and leading the police to the
remote control of the immobilizer is not conclusive of anything. The
remote control was not positively identified as that belonging to the
complainant and there is no evidence as to what the accused pointed
out the remote control as been. There is no evidence of any
explanation given by the accused as to the significance of the
control he pointed out. It is true as argued by the crown that such
pointing out took place after it had been explained to accused number
3 by the Police what was being sought. But it is not the only
inference that can be made from the pointing out even in these
circumstances that the immobilizer control was that taken from the
complainant on the night of the robbery.
It
cannot be reasoned that because of the identification of accused
number 2 by the Da Silvas was proved to be correct by the other
evidence linking number 2 with the crime that the identification of
number 3 must also be correct.
The
case of each accused must be considered differently. The way they
bought these vehicles were bought is suspicious. And there is force
in the argument that this evidence is a further indication of the
guilt of accused number 1 and 2. I do not think however that the
evidence is more than suspicious. It is probable that the accused
disposed of their illgotten money in this way.
15
In
coming to my conclusion however I exclude any inference which may be
sought by the prosecution to be drawn therefrom. In the case of
number 3 accused different considerations apply. It is true that he
was identified by the Da Silvas as one of the three intruders who
robbed the complainant. Such identification is subject to the
criticism I have made in considering the case of accused number 2.
There
is however no evidence against number 3 apart from such defective
identification which would justify a conviction. The evidence of him
being in possession of and leading the Police to the remote control
of the immobilizer is not conclusive of anything. The remote control
was not positively identified as that belonging to the complainant
and there is no evidence as to what the accused pointed out the
remote control as been. There is no evidence of any explanation given
by the accused as to the significance of the control he pointed out.
It is true as argued by the crown such pointing out took place after
it had been explained to the accused number 3 by the police what was
being sought.
But
it is not the only inference that can be made from the pointing out
even in these circumstances that the immobilizer control was that
taken from the complainant on the night of the robbery. It cannot be
reasoned that because of the identification of accused number 2 by
the Da Silvas was proved to be correct by the other evidence linking
number 2 with the crime that the identification of number 3 must also
be correct.
The
case of each accused must be considered differently. If one were to
look at the balance of probabilities alone it may be possible to find
that accused number 3 was one of the robbers. Applying a test of
proof beyond reasonable doubt one is not permitted a conviction in
his case.
In
coming to this conclusion I must indicate to accused number 3 that
this finding does not mean that he is innocent and that he is perhaps
very lucky not to meet the fate of the others who I found guilty of
the offence in this case. The seriousness of robbery must be
impressed on him. And he should take heed to ensure that he never
again find himself accused of such an offence.
16
On
counts 3 and 4 which relate to the unlawful possession of the firearm
and ammunition there is evidence of the discovery of the arm of war
and its magazine at the home of the mother of accused number 1. The
place where these items were found was pointed out by the accused. I
have already another context dealt with this evidence and the accused
flatly denied that any weapon or ammunition was found. I have already
referred to the evidence given on his behalf by his mother and how
she was completely discredited. The weapon itself is before the
court, it was tested and found be in working order and capable of
firing and discharging a projectile Ammunition 2 is in evidence as an
exhibit.
There
is no reasonable suggestion as to how the Police came into possession
of these items otherwise than in the manner to which Mavuso attested.
The
finding of this court is therefore:
Accused
numbers 2 and 4 are found guilty as charged on count 2
Accused
1 and 2 are found guilty on Count 1 Accused 3 is found not guilty on
count 1 Accused 1 is found guilty on charges 3 and 4
I
have had argument in mitigation in this case. In the case of accused
number 1 and 2 you are first offenders as far as absence of previous
convictions is concerned.
This
is an important consideration. As far as accused number 4 is
concerned Ms previous convictions which is recorded is not of any
real significance in regard to this present offence.
17
I
am informed that in your case you have been found guilty by Mr.
Justice Dunn of some other offence similar in nature and you were
awaiting sentence in that case. I cannot take into account that
conviction but that this conviction will be taken into account by His
Lordship Mr. Justice Dunn. The Personal particulars of each accused
has been drawn to my attention not in evidence but by statements from
the bar which have not been disputed. There is nothing in these
personal circumstances which does not apply in most other cases. The
accused persons hike those before the court often have dependents and
they are of necessity have to be taken away from their homes and
their businesses and employment. The armed intrusion of people into
persons homes is not to be tolerated. It is tine that nobody was hurt
in either of the robberies which took place. On the other hand the
complainants were threatened with violence should they not succumb to
their demands. And there is really nothing to distinguish these two
crimes from the too many other crimes which are being committed of
the same nature. On count 1 that is the robbery involving the
Fernandes family in which accused number 1 and number 2 are involved
each will be sentenced to 10 years imprisonment. On count 2 involving
the robbery on the Bishop accused number 2 and accused number 4 will
each be sentenced to 10 years imprisonment. In the case of counts 3
and 4 law prescribes the minimum penalty for the possession of the
firearms and ammunition and accused number 1 will therefore be
sentenced to the minimum provided which in the case of count 3 is 5
years imprisonment and in the case of count 4 is 2 years
imprisonment. The option of a fine is meaningless in the present
circumstances. In the case of number 1 the sentences on counts 3 and
4 will run concurrently with his sentence on count 1 to the extent of
three years, that means three years of the 5 years will run
concurrently with the 10 years. The effective sentence is therefore
12 years. In the case of number 2 his sentence on each count is for
10 years of which 5 years on count will run concurrently.
I
take it into account that he is involved in both crimes therefore his
sentence will be longer than those of the others. In his case the
effective sentence is therefore 15 years.
18
In
the case of accused number 4 his sentence is 10 years and all
imprisonment are to date from the day upon which the respective
accused were taken into custody.
The
witness Johnson who was an accomplice and gave his evidence is
declared to be immune from prosecution. Those exhibits which are not
being shown to belong to the complainants should be returned to the
accused from whom they were taken.
S.W.
SAPIRE
ACTING
CHIEF JUSTICE
19
