IN
THE HIGH COURT OF SWAZILAND
Review
Case No. 16/93
In
the matter of
THE
KING
vs
MLIMI
DLAMINI
In
the District of Shiselweni
17th
February, 1993
REVIEW
ORDER
Hull,
CJ.
The
accused, having earlier tendered a plea of guilty, was found guilty
on a charge which is described both in the charge sheet and the
judgment as being "Housebreaking with intent to steal and
theft".
The
learned senior magistrate rightly had regard, on the one hand, to the
prevalence of this offence but, on the other, to the plea, the youth
of the accused (who was 18 years old) and the fact that he was a
first offender.
The
magistrate sentenced him to two years imprisonment without the option
of a fine, but also to a further twelve months imprisonment, again
without the option of a fine, the latter sentence being suspended for
three years on condition that he is not convicted during the period
of suspension of a crime or offence of which theft is an element.
2
The
magistrate's intention in doing this, and his reasons, are not
entirely clear. It appears to me more likely that he regarded him as
having committed two offences, i.e. housebreaking with intent to
seal, and theft. Another possibility, though this seems less likely,
is that he meant to impose a three year sentence of which one was
suspended.
From
a brief review of the authorities, it appears to me that there is no
intrinsic irregularity in alleging two offences in a single charge in
this jurisdiction, although the better practice in my view, is to
specify each offence in a separate charge.
No
real injustice has been caused to the accused (who was unrepresented)
by the combination of the charges as such. However the episode
should, for the purposes of punishment, be treated as a single
transaction.
Two
years actual imprisonment, in all the circumstances, was too heavy a
penalty.
The
convictions and sentences are varied as follows:
Convictions
will be entered against the accused for housebreaking with intent to
steal and for theft respectively;
On
each of these charges, he will be sentenced to two years
imprisonment, without the option of a fine, of which, however, 18
months will be suspended in each case for three years on condition
that during the period of suspension he does not commit a crime or
offence of which theft is an element.
3
Both
sentences will run concurrently, and will run from the time that he
was first taken into custody, to the effect that the time he has
already spent in custody is to be taken into account.
David
Hull
CHIEF
JUSTICE
