THE HIGH COURT OF SWAZILAND
the matter of:
this case which came before me on automatic review the accused was
convicted by the Magistrate, Manzini on a charge sheet of two counts.
Three other persons with whom the accuses was jointly charged were
acquitted and discharged. On count 1 the accused was charged with the
offence of malicious injury to property. The particulars to this
charge were that on the 1st October 1992 and at the Manzini Remand
Centre the accused "wrongfully and maliciously and with intent
to escape did cut one dormitory window burglar bar with the intention
of injuring the Swaziland Government."
charge on count 2 was as follows –
accused are guilty of the offence of contravening section 48
(1)(A)(C)(D)(E) of Act 40 of 1964 in that upon or about the 1st
October, 1992 and at or near Manzini Remand Centre the accused each
one, the other or all of them did wrongfully and intentionally
attempt to escape, assist mates or conspire to escape.
accused was sentenced to a fine of E100.00 in
of which 100 days imprisonment on count 1. On count 2 he was
sentenced to 12 months imprisonment 3 months of which were
conditionally suspended for 2 years. The sentences on the two counts
were ordered to run concurrently.
will deal first with the charge under count 2. Section 48(1) of the
Prisons Act No. 40 of 1964 (The Act) provides –
prisoner shall be guilty of an offence and liable, on conviction, to
imprisonment not exceeding two years which shall commence after the
expiry of any other sentence which he was serving at the time of his
offence if he –
or attempts to escape from prison or other lawful custody;
or incites any other person to mutiny;
with any other person to procure the escape of a prisoner from
prison or other lawful custody;
or incites, any other prisoner to escape from prison or other lawful
in possession of anything with the intention of using it to procure
his own escape or that of any other person.
1(a) through to 1(e) create separate offences
must be particularised as separate counts depending on the evidence
available to the crown.
accused person is entitled to know which of the various offences
created by the section, he is charged with. He is further entitled to
particulars of the offence with which he is charged. The Magistrate
should not have allowed the prosecution to, as it were, throw the
whole section at the accused. The accused was unrepresented at the
trial and must obviously have been prejudiced by the blanket charge
preferred against him on count 2.
to count 1 the allegation of both the intent to escape and the intent
to injure the Swaziland Government in its property in one count can
only serve to cloud the real charge which the crown intended proving
against the accused. The magistrate should have directed the
prosecution to particularise the charge of malicious injury to
property so as to ensure that the accused understood clearly what
charge he was faced with. The accused who pleaded guilty on this
count may well have been pleading guilty to attempting to escape from
lawful custody. The Magistrate should have ensured that such a
situation did not arise by deleting the reference to the intent to
escape on the charge of malicious injury to property.
irregularity in calling on the accused to plead to the charges as
framed amounted in my view to a failure of justice. The accused
cannot be said to have had a fair trial. The fact that he pleaded
guilty did not lessen the duty of the Magistrate to ensure that the
charges were properly framed and that the accused understood clearly
what the case against him was on each count.
conviction and sentence are in the circumstances set aside.