THE HIGH COURT OF SWAZILAND
the matter between:
THE APPELLANT Mr. Fine
THE RESPONDENT Mr. B. Simelane
appellant German Dlamini, who was 56 years old at the time of his
trial, has operated a transport business at Ezulwini since 1973.
January of 1992, Detective Sergeants 2333 James Mkhatshwa and 2280
Richard Mngomezulu of the Royal Swazi Police were driving up the
Malagwane Hill towards Mbabane. As they did so, their attention was
drawn to an apparent discrepancy between a Nissan truck and the
registration plate it bore. The numbers on the plate appeared to the
detectives to be too old for the truck. They made inquiries which
eventually brought them to the business premises of the appellant. In
the result, the six motor vehicles to which the present appeal
relates were recovered from his possession.
was subsequently charged in the Principal Magistrate's Court with the
theft of the vehicles. These charges became counts 2 to 7 (inclusive)
on the charge sheet. The first five of these counts related to
vehicles that he allegedly stole in South Africa and brought into
Swaziland. The last
7) related to a vehicle allegedly stolen by him in Swaziland. On
count 4, he was tried together with one Elman Ntshalintshali of
his final submissions, the prosecutor conceded that the case against
Ntshalintshali had not been proved.
learned Principal Magistrate, in his judgment, acquitted
Ntshalintshali on count 4. For reasons given, he acquitted the
appellant of theft on all 6 counts, but convicted him of receiving
stolen property, well knowing it to be stolen. After hearing
submissions on sentence, he proceeded to sentence him on each count
to five years imprisonment, of which one year was suspended for a
period of three years on condition that he is not convicted of theft
during the period of suspension. He ordered that the sentences were
to run consecutively.
appellant has appealed against the convictions and sentences. The
original notice of appeal comprised just over four pages. In
substance, the grounds of the appeal against conviction on each count
were that the Principal Magistrate erred in finding that the
appellant knew that the motor vehicles had been stolen, and in not
accepting that the appellant's explanation might reasonably have been
true. On count 4, the appellant also relied on the ground that
Ntshalintshali had corroborated his explanation (which was that he
had bought the vehicle to which that count related from a man called
of the workload and present resources of the High Court, the appeal
has taken longer to determine then I would have wished. I have
already conveyed my apologies for this to counsel. For my own point
however, I also have a concern which I hope counsel will not mind my
the time the appeal came on for hearing, the heads of argument for
the appellent ran to some twenty-one and a half pages.
the question of the convictions they numbered some twenty-eight
alleged misdirections by the learned Principal Magistrate.
were serious charges, with serious consequences for the appellant. An
appellant is of course entitled to challenge in all respects, on
grounds of law and fact, the proceedings whereby he was convicted and
sentenced. He is of course entitled, amongst other things, to take
points that go to matters of procedure and of admissibility of
evidence. In the end, however, the appellate court has also to
consider whether any irregularity or defect in the record or
proceedings has resulted in a failure of justice or prejudice to the
accused. Beyond that, I think it is the experience of most advocates
that although it is not difficult to identify, by an exercise of
analysis, various points of possible contention, the merits of an
appeal usually depend on a narrower range of critical, well-taken
say that because it appears to me that in the way in which it was
eventually presented, this appeal has been in many ways something of
a "pom-pom gun" aspect about it. A barrage of points has
been thrown up in the heads of argument. On the other hand, it is
clear from the record that the prosecution case against the appellant
was a strong one, that there was ample evidence on which a presiding
magistrate might have reached the verdicts that were given, and that
the Principal Magistrate clearly addressed his mind to the need to
consider whether it was reasonably possible that the appellant's
account was true.
of the objections that have been taken to the Principal Magistrate's
judgment, in my view, have no merit. I find it difficult not to think
that they have been drawn up in the hope of doing some damage, and
knocking it down. I do not think that such an approach is really in
the interests of justice, and I doubt whether it is really in the
interests of the appellant either.
giving his decision, the Principal Magistrate found that it had been
proved by the Crown that the six vehicles in question had all been
stolen (at various times between October 1985 and September 1991.)
There can be no doubt about this. The real defence put forward by the
appellant is that he had acquired them in good faith. There is no
doubt either that they were all found in his possession. They were
also all found to have Swaziland number plates, which were
nevertheless not numbers that had been assigned to them on
registration. The evidence of the police was that the appellant had
been asked for papers in respect of the vehicles, but had not
produced any documents to show that they were his.
those circumstances, if at the close of the prosecution case the
appellant had chosen not to give any explanation as to how he had
come into possession of the vehicles, it was clearly open to the
Principal Magistrate to decide on the Crown's evidence that he was
satisfied beyond reasonable doubt that the appellant, in respect of
each vehicle, was knowingly in receipt of stolen property.
appellant did elect to give evidence.
he himself testified, however, he called another person, a Mr.
Ngwenya, to testify on his behalf how the vehicle that was the
subject of count 7 came into the appellant's possession. The witness
said that he had taken it there to be repaired and had in the
meantime had the loan of the appellant's kombi. It appears from the
record that the appellant, having called this witness, then took the
position that that was his case in respect of count 7, and that he
would not himself testify in respect of that count.
was in my view a very unusual course. It is the practice in common
law jurisdictions, and also as I understand it in civil law
jurisdictions, for an accused
who intends to given evidence on his own behalf to do so before he
calls any other witnesses on his behalf - for obvious reasons.
Moreover, the notion that an accused person can call evidence by some
other person, and then close his case in respect of one count on a
charge sheet, and then proceed to give evidence on his own behalf on
the remaining counts, is not one that I have ever encountered. It
appears to me to be quite wrong.
his judgment, having reviewed the prosecution evidence, the Principal
Magistrate then turned to consider the explanation offered by the
appellant. At page 80 of the record, he said explicitly in his
judgment, in his consideration of that explanation, that he was well
aware that no onus of proof rested on the appellant, and that his
evidence needed only to be reasonably true for him to be acquitted.
In that last respect, he was clearly saying that if it were
reasonably possible that the appellant's account could be true, he
was entitled to be acquitted.
Principal Magistrate rejected the account given by the appellant. In
doing so he indicated that he could not accept it as being reasonably
possible, and that he regarded it as a fabrication.
gave reasons for these conclusions. These are set out from page 80 of
his judgment, at line 15 to page 83 at line 6.
the first place, he took the view that because the appellant was
found in possession of 6 stolen vehicles, a reasonable explanation
would have to be "much higher", in his words, than if there
had only been one.
also found, for reasons given, that documents produced as exhibits T
and U for the appellant to show that he had been the bona fide
purchaser of the vehicles to which counts
and 6 related were most probably fraudulent. He also accepted the
evidence of the police officers that one Mr. Spankie Ndwandwe, from
whom the appellant claimed to have bought in 1991 the vehicles to
which count 3 and 6 related, had in fact died in 1990. He had regard
to the admitted fact that the vehicles, when found in the appellant's
possession, had false Swaziland number plates.
doing so, for reasons given, he rejected the appellant's claim that
he had not known that they had been put on the vehicles by his
employees. He also had regard on the one hand to evidence given by
the police officers to the effect that the appellant had told him
that he had bought two vehicles from Ndwandwe, one from his brother,
one from Ntshalintshali and two other men, and one from a firm in Big
Bend, and that he acquired by exchange the kombi with Ngwenya,
whereas at the trial he maintained that he had bought four of the
vehicles from Ndwandwe, and Ngwenya had said that he only borrowed
the kombi while the vehicle to which count 7 related was being
the Magistrate, also drew an adverse inference from the fact that the
appellant personally elected to remain silent about count 7.
page 83 of the judgment at line 7, the Principal Magistrate went on
to say that he had listed sufficient reasons to indicate that on the
totality of the evidence, the appellant's account was untrue.
then went on, expressly, to consider whether the only reasonable
inference, from the fact of the appellant's possession of the
vehicles without an explanation that might reasonably be true, was
that he had received them knowing them to be stolen. At this point in
his judgment it does appear to me that, having put it that way, he
then proceeded to contemplate that as long as the inference was
reasonable and consistent with the facts proved, that was sufficient.
And from there he went on further to have regard to the evidence that
the appellant had in fact purchased the vehicles, and
it was therefore probable that he had only received them, knowing
however that they were stolen.
that this inference was reasonably consistent with the facts, and the
more favourable inference (i.e., clearly, to the accused) he
accordingly acquitted him of theft but found him guilty on all counts
of knowingly receiving stolen motor vehicles.
was contended that the Principal Magistrate misdirected himself in
holding that a higher degree of "proof" was needed in
weighing the appellent's explanation because he was found in
possession of 6 cars. I do not think that that was what the
Magistrate was saying at all. What he obviously meant was that if a
man is seeking to give an innocent explanation for the possession of
stolen cars, a court is less likely, in weighing the evidence, to
think that his explanation is reasonably possible when he has six
stolen vehicles than in the case where he has had one (especially, I
think, where the six are acquired over a period of time). That is a
matter of common sense, not of misdirection.
was also contended that the Magistrate did not consider each of the
counts separately. He was of course bound to do so, but in my view
the record shows clearly enough that he did have regard specifically
to each count.
was also said that he wrongly accepted, as undisputed, the testimony
of the police officers that Ndwandwe had died in 1990, and that their
evidence in that respect was in any event hearsay, so that the
inferences drawn by the Magistrate against the appellant on the basis
that Ndwandwe was not alive in 1991 were unjustified. In their
evidence, the officers had each mentioned that Ndwandwe had died in
1990. One said that he had known him. The other said that he was
shot. They were not challenged in cross-examination on these
statements. I think that the Principal Magistrate was entitled to
take that evidence into account. In any event however, this was by no
means the only reason why he disbelieved the appellant as a witness.
also consider that, having regard to the other features of the
so-called receipts produced by the appellant - at the trial - the
Magistrate was entitled to have taken the view that they were
probably bogus, and I also consider that he was entitled to draw an
adverse inference from the way in which the defence dealt with count
complaint by the appellant was that, having acquitted Ntshalintshali
on count 4, the Principal Magistrate then wrongly decided to accept
his evidence as corroborating that of the appellant on that count.
That does not follow at all. The test, in considering the charge
against the second accused on count 4, was whether it was proved
beyond doubt to have been proved. He was acquitted because it was not
shown that he had played any role other than by way of introduction.
It does not follow at all that because he was acquitted, the
allegations against the appellant on count 4 should not have been
accepted as proven.
do not consider that there is any merit in any of the other grounds
of appeal against conviction.
considered the possibility that the appellant's explanation might
reasonably be true, it was clearly open to the Principal Magistrate
on the evidence to dismiss that as a possibility.
done so, he then had to consider independently whether the only
reasonable inference on the whole of the evidence was that the
appellant had either stolen the vehicles, or had received them
knowing that they were stolen. Ironically, it is this part of his
judgment that does in my view raise at least questions as to whether
he was applying the right approach at that point. The appellant,
however, did not take issue on this. My own view is that reading the
judgment in context, it is clear enough that the Principal Magistrate
was quite conscious as to who
to prove what, and that in this particular portion of the judgment,
what he was in fact doing was not to ask himself whether one
reasonable conclusion was that the appellant had stolen or received
the vehicles, but which of these inferences was more favourable to
the appellant. In any event, I am in no doubt that the only
reasonable inference was that he had received them knowing them to be
stolen, and that no failure of justice has occurred.
these reasons the appeal against convictions is dismissed.
the appeal against sentence, the appellent was a 56 year old man with
no previous convictions.
is a man of some prominence, with several wives and a large family.
Nevertheless I agree with the Principal Magistrate's view that these
were serious offences over a period of time in the course of his
business. I also take the view, globally, that a total term of 6
years imprisonment in respect of them is appropriate.
respect, I differ from the learned Principal Magistrate in one
regard. Having reached a decision that a substantial term of
imprisonment was warranted, I do not think it was appropriate to also
impose additional suspended terms. I think it was inappropriate too
for reasons of the appellent's age and his station in life.
appeal against sentence is allowed to the following extent only:
counts 2 and 5., terms of two years imprisonment each are subtituted
respectively, to run concurrently as between themselves.
counts 6 and 7, terms of two years actual imprisonment each are
substituted respectively, to run concurrently to the sentences on
counts 2 and 5.
counts 3 and 4 terms of two years actual imprisonment are
substituted each, to run concurrently as between themselves but
consecutively to the sentences on counts 6 and 7 - to the overall
effect that he shall serve a total of six years actual imprisonment,
that will be calculated from the time he first went into custody on
all other respects the appeal is dismissed and the convictions and
sentences are affirmed.