IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE APPEAL CASE
No.P791/91
MATHOKOZA
MANDLA NTSHALINTSHALI Appellant
And
REX
Respondent
CORAM
Hull, CJ.
FOR
APPELLANT Mr. V. Dlamini
FOR
RESPONDENT Mr. Cele
JUDGMENT
2/6/93
Hull,
CJ.
The
appellant, who appears to me to be a young man, was convicted by the
Principal Magistrate sitting at Manzini on 18th September 1991, on a
charge of stealing in Lydenburg in South Africa and thereafter
bringing into Swaziland a Toyota Hilux motor-vehicle valued at
S30,000, the property of Jacob Breedt. He as sentenced to 5 years
imprisonment on the basis, explicitly, that he had a previous
conviction for theft of a motor vehicle.
On
16th October 1991, counsel who was then acting for him (and who had
represented him at his trial) noted an appeal against conviction and
sentence. This appeal was not brought on for hearing until today. In
the meantime the appellant has been undergoing his sentence.
2
The
Acting Registrar is directed to enquire into the reasons for the
delay and to report to the Court on it, in writing within 14 days.
The
grounds of appeal against conviction as advanced by his present
counsel today can, I think, he summarised adequately in the following
way.
Objection
was first, taken to the admission of the testimony of the second
police witness, a mechanic to whom the appellant and another man were
said to have brought the vehicle to Swaziland for checking, on the
ground that this testimony was hearsay.
In
essence, it was objected that parts of his testimony related to
conversations between himself and his wife, otherwise in the presence
of the accused, about matters of which the witness had no direct
knowledge. Even if that is a correct intepretation of what the
witness was saying, the answer to the objection is that the Principal
Magistrate clearly did not rely on the witness'es evidence. He relied
directly on the evidence of his wife. This ground of appeal therefore
cannot be sustained.
The
second ground was that the Principal Magistrate failed to address his
mind to the question whether it was reasonably possible that the
appellant's own account as to how he came to be in possession of the
vehicle was true.
The
mechanic's wife, who was a relative of the appellant, testified at
the trial that he came to her homestead with another man. He, the
appellant, was driving the vehicle and he told her that he wanted to
leave it with her husband for safe keeping and to check a mechanical
fault.
By
the end of the Crown case, it had been admitted by counsel for the
appellant at the trial that the vehicle belonged to Mr. Breedt and
had been stolen.
3
This
admission was not in itself of course an acknowledgement that the
appellant was the thief, though it was contrary to a line of
questioning that had earlier been put to the mechanic's wife in cross
examination - and at a later date during the trial, defence counsel
did attempt to resile from the admission.
The
appellant gave evidence in his own behalf at the trial. His
explanation was that it was untrue that he had driven the vehicle to
the homestead. The other person, David Msomi, had been driving it.
Msomi
had come to his place of employment and asked him to accompany him to
the homestead for repairs.
He
was therefore saying that although he did not dispute that the
vehicle was stolen, he personally had not known that. He was also
saying that he himself was not in possession of the vehicle, but that
Msomi was.
The
Principal Magistrate believed the evidence of the mechanic's wife
that it was the appellant who had driven the vehicle to her
homestead, and also her evidence to the effect that the other man in
the vehicle never said anything.
By
clear implication, he was therefore also accepting her evidence that
the appellant asked that her husband should look after the vehicle
and check the mechanical fault. The Principal Magistrate went on to
say immediately "I then rejected the evidence of the accused and
found him guilty of theft as charged".
Crown
Counsel drew my attention to the Theft of Motor Vehicles Act 1991,
and more particularly to those provisions in it dealing with a
presumption of guilt where a person is found in possession of a motor
vehicle and with mandatory minimum sentences. This Act, however, had
not come under operation by the time of the trial.
4
Nevertheless
I do not consider that this ground of appeal against conviction can
be sustained. The mechanic's wife was a relative of the appellant.
While
it was not for him to explain why, in those circumstances, she might
tell lies against him, that would be one relevant question for the
court itself to turn its mind to, when weighing her evidence. In the
way in which the appellant's case at trial was presented, there was
another apparent inconsistency, because at one stage in her cross
examination, defence counsel put it to her that the appellant would
say that he had been asked by Msomi to drive the vehicle to her
homestead, whereas by the time he came to give evidence, the
appellant denied that he had been the driver. It was open to the
Principal Magistrate to decide that he believed the mechanic's wife
and that he disbelieved the appellant's account. I do not consider
that it has been shown that he did not address himself to the
question whether the appellant's explanation might reasonably be
true. The vehicle was admittedly a stolen one. On the evidence the
Principal Magistrate was, in my view, entitled to conclude that the
appellant had stolen it.
It
was also contended that the Crown and the court below erred in not
taking steps to check more fully whether the appellant did not have
had the opportunity to go to Lydenburg to steal the vehicle or to
ensure the attendance of Msomi as a witness. But if the Crown
concluded that it had sufficient evidence on which to bring a
prosecution, it was under no obligation to take these steps, at least
in the absence of any real reason to suggest either that the
appellant could not have been in South Africa at the time of the
theft there or that Msomi might have been the person who had the
vehicle. It was not put to the police officers who gave evidence for
the Crown that the accused had at anytime given them the explanation
that he thought that the vehicle belonged to or was in charge of
Msomi. In cross examination
5
Detective
Sergeant Mahlalela testified that the appellant was charged because
he failed to explain how he came into possession of the motor
vehicle. The appellant, who was legally represented, did not call
Msomi as a witness and his counsel did not seek the Court's
assistance in that regard. The appellant's whereabouts, when the
vehicle was stolen in South Africa, and his assertion that it was
Msomi who had the vehicle, were matters within his own knowledge, and
not that of the police or the prosecutor, at the times of the
investigation and the commencement of the trial.
The
appeal against conviction is accordingly dismissed and the conviction
is affirmed.
On
the question of sentence, it is conceded by the Crown that the
Principal Magistrate erred in holding that he had a previous
conviction for the theft of a motor car. He was not a first offender,
but his previous conviction was for stealing something from a motor
car.
The
sentence actually imposed in September of 1991, i.e. five years
imprisonment, was in my view manifestly too heavy and was in any
event based on a wrong premise.
The
appeal against sentence is allowed, to the extent of reducing the
term of imprisonment of five years to one of two years. It is of
course still to run from the date originally specified.
DAVID
HULL
CHIEF
JUSTICE
