THE
HIGH COURT OF SWAZILAND LUCAS SHONGWE
Vs
REX
Criminal
Appeal No. 42/2000
Coram MAPHALALA
J
MASUKU
J
For
the Crown MISS LANGWENYA
For
the Appellant IN PERSON
JUDGEMENT
(26/09/2002)
Maphalala
J:
The
appellant was charged and found guilty of robbery in the Magistrate's
court, Manzini. Appellant was sentenced to a term of (7) seven years
imprisonment. Appellant subsequently filed an appeal against
conviction and sentence in the High Court. His appeal appeared before
us where it was dismissed in respect of both conviction and sentence
on the 27th August 2002. A reasoned judgement on the appeal was
delivered in open Court on the aforesaid date.
The
appellant now seeks leave to appeal to the Court of Appeal being
dissatisfied with our findings of the 27th September 2002.
2
The
appellant, in terms of Rule 8 of the Court of Appeal Rules, 1971
should have filed his application for leave to appeal to the Court of
Appeal on or before the 25th October 2001. He did not. Appellant only
filed his Heads of Argument on the 29th April 2002, and did not file
an application for condonation for non-compliance with the rules of
court. However, when the matter appeared before us we did not press
the issue of condonation in view of the fact that at this stage he
was unrepresented. We then meru motu granted condonation and ruled
that the matter should proceed on the merits.
The
appellant's grounds for leave to appeal to the Court of Appeal are
found in the Notice of Appeal filed by the appellant's erstwhile
attorneys Maphalala and Company on the 8th October 2001, and are as
follows:
"AD
Conviction
1. Their
Lordships erred in finding that the appellant was guilty as charged
on the evidence placed before them.
2. Their
Lordships erred in finding that the Crown had proved its case beyond
any reasonable doubt.
3. Their
Lordships erred in findings (sic) that the Crown witnesses were
credible witnesses in view of the fact that there was some
discrepancy in their evidence.
4. The
conviction was against the evidence and the weight thereof.
AD
Sentence
1. The
sentence imposed on the appellant is excessive in the circumstances
as to induce
a
sense of shock taking into account that the appellant is the (sic)
first offender and his personal circumstances".
At
the commencement of arguments before us Mr. Nzima who represented the
appellant both before the court a quo and before us when the appeal
was heard submitted that he was formally withdrawing as attorney of
record. He was subsequently released by the court. The appellant
informed us that he was ready to represent himself. Although in the
course of his long address to us he cast aspersions on Mr. Nzima's
competency both in the court a quo and before us on appeal, our view
then was that the appellant was free to consult his attorney when he
felt he was going contrary to his instructions. In any event, the
relationship between attorney and client
3
was
aptly stated by Steyn CJ in the case of Saloojee and another vs
Minister of Community Development, 1965 (2) S.A. 135 (AD) as follows:
and I quote:
"The
attorney, after all, is the representative whom the litigant has
chosen for himself, and there is little reason why ... the litigant
should be absolved from the normal consequences of such a
relationship, no matter what the circumstances of the failure are".
I
must say in this respect that Mr. Nzima when he appeared before us on
appeal filed very extensive Heads of Arguments which were
painstakingly prepared covering some 9 pages. He argued with all the
force in his command. Any attack on his competency is unwarranted and
misconceived. He even instructed Advocate Thwala to pursue the matter
before the Court of Appeal, albeit prematurely.
Reverting
to the present application the appellant filed Heads of Arguments
which in the main amplified the grounds filed by his erstwhile
attorneys.
The
general principle in regard to leave to appeal is that the power to
grant it must be exercised judicially and the test to be applied is
the test given in R vs Ngubane and others, 1945 A.D. 185, 187 and R
vs Nxumalo 1939, A.D. 580, 581, i.e that leave to appeal will not be
granted unless the applicant will have a reasonable prospect of
success on appeal, so that if the appeal involves a question of law
which is arguable it must be arguable in the sense that there is
substance in the argument advanced on behalf of the applicant. The
test must be applied objectively, the trial Judge must disabuse his
mind of the fact that he himself has, and had, no reasonable doubt as
to the guilt of the accused, and he must ask himself whether there is
a reasonable prospect that the Judges of appeal will take a different
view (see R vs Kuzwayo 1949 (3) S.A. 761 (AD).
It
is therefore, within the above-cited legal framework that the matter
at hand ought to be decided. The present case hinges on the evidence
of PW5 who the appellant failed both in the court a quo and before us
on appeal to dislodge. The confession by the appellant to PW5 that
they had committed the robbery, coupled with the news heard by PW5 of
the robbery that indeed the appellant must have been party to the
offence. That was not all. The appellant further invited PW5 to go to
his home to collect his share of the loot.
4
It
is worthy of note further that when PW5 was cross-examined by Mr.
Nzima for the appellant in the court below it was never put to him by
Mr. Nzima that the appellant would say that he does not know PW5 (see
R vs Dominic Mngomezulu and others Criminal Case No. 94/90
(unreported) at page 17). Strangely, when the appellant adduced his
evidence, he for the first time, told the court that he did not know
PW5 and that he had seen him for the first time in court. This issue
was material to the appellant's defence such that it could not be
omitted without being regarded as an afterthought.
It
is for the above reasons that I would propose that the application as
regards conviction ought to be dismissed, as it is hopeless, without
reasonable prospect of success.
The
above mentioned sentiments equally apply as regards the question of
sentence. The challenge by the appellant is without any merit as we
could not find neither a misdirection nor an irregularity on the part
of the Magistrate a quo. Neither can it be said that the sentence
imposed was harsh and induces a sense of shock.
I
am of the view, in the totality of the facts, that the application
for leave to appeal to the Court of Appeal ought to fail and it is so
ordered. There is no reasonable prospect that the Court of Appeal
would take a different view of this matter, both on conviction and
sentence.
S.B.
MAPHALALA
JUDGE
I
agree
T.S.
MASUKU
JUDGE
