IN
THE HIGH COURT OF SWAZILAND MBABANE
CRIMINAL
CASE NUMBER: 17/93
DATE:
2 APRIL 1993
In
the case of:
REX
versus
HARRY
SIBHAHA DLAMINI BAKHONBISILE R. MKHWANAZI
BEFORE
THE HONOURABLE ACTING JUDGE S. SAPIRE
JUDGMENT
There
are two accused charged before me. The Crown case is closed and
counsel for both accused have applied for the discharge of their
respective clients.
2
The
charges arise in the following circumstances. Both accused were
employed in the Department of the Registrar General. Accused No. 1,
it was thought was reaching or had reached retirement age and there
was apparently an intra departmental dispute or difference of opinion
as to whether his retirement age was fifty five years or sixty years.
This in turn depended upon when he was initially confirmed in his
position as an employee of the State. If the age of fifty five was
applicable, he should have retired in 1991. If the age at which he
should have retired was sixty, then his retirement year will be 1996.
At all times his age was assumed to be that stated in a birth
certificate issued on the application of his father, many years after
his birth, which reflected that he was born in 1936. These
circumstances gave rise to an inference, of which there was no
rebuttal, that feeling his position to be in jeopardy, Accused No 1,
procured the issue of a further certificate of birth amending the
original certificate to reflect his date of birth as being 1941. He
then presented this certificate to the secretary in order to have his
employment record reflect his date of birth as 1941 so as to avoid
immediate retirement. If the certificate were false
3
and
if his actual date of birth were shown to be other than 1941, then
clearly the Swaziland Government would suffer prejudice or potential
prejudice in the manner described in the charge sheet.
Proof
of the falsity of the amending certificate is crucial to all the
charges.
As
far as Accused No. 2 is concerned, she was also employed in the
offices of the Registrar General.
The
evidence is that the Registrar himself, in or about April 1992, was
engaged in a commission of enquiry which prevented him from paying
full attention to his duties as Registrar. Accused No. 2 was
appointed to deputise for him and to act in his place from the 18th
of March 1992 to the 31st of May 1992. I assume that the Registrar
was off duty during that period. During this period, however, the
Judicial Service Commission selected Accused No. 2 to be the Deputy
Registrar or Assistant Registrar of this Court. The effective date of
the promotion was the 4th of May and a letter recording this was
issued in June 1992. While Accused No. 2 was still working in the
office of the Registrar General, Mr Mngomezulu, who was then the
Permanent Secretary of
4
Justice,
required her attendance at a conference in Harare and during the
period of her absence ending on the 1st of May, Accused No. 1 was
left to fill her post with Mrs Shongwe to assist him at the office of
the Registrar of Births. This was recorded in the letter addressed to
the staff of the Registrar General's office.
On
Accused No. 2's return, it appears that the Permanent Secretary, Mr
Mngomezulu, at the request of the relevant authorities saw to it that
she reported for duty here at the High Court from the 4th of May. She
was stationed at the Registrar's office at the High Court from that
date.
There
appears to have been no written communication between the Judicial
Service Commission and her former employer. Mr Mngomezulu, who
instructed her on the transfer, said in evidence in this Court, and
what he has said has not been controverted, that he told her that she
was to act as Deputy Registrar of the High Court and at the same time
to keep an eye on affairs at the Registrar General's office, and to
5
assist
them in the absence of the Registrar himself. Mr Mngomezulu was
emphatic that the Accused No. 2 was empowered and entitled to put her
signature to the application for an alteration of the particulars to
Accused No. 1's birth certificate which is Exhibit P in this case, to
certify that the amendment to the date of birth of Accused No. 1 had
been given effect to in the records of the Registrar.
Although
the Crown has led other evidence to show that this is most irregular
and that in fact it is not possible for a person in the Civil Service
to hold two different positions at the same time, the fact remains
that Mr Mngomezulu said that this is what he did and this is how he
instructed Accused No. 2. As much as Mr Donkoh, in a spirited
argument for the State, attempted to jettison this evidence damaging
to the Crown case, it cannot be ignored and creates a fatal
contradiction in the Crown case.
The
evidence was that Accused No. 1 received the application of the
amendment of the birth certificate at the offices of the Registrar
General. The
6
application
was made by his father who laconically said, in the application form,
that he wanted a change of the date of birth from 1936 to 1941. No
reasons were given for the necessity of the change.
There
are several things wrong with this application. The father had ho
right to. make the application in the first place. In terms of the
relevant statutory enactment if a person affected by an entry in the
Registrar, is over 21 years of age, it is he who must make the
application for an amendment thereof.
The
application is also defective in that it states, that a copy of
documentary proof in support of the proposed change, is attached
thereto. No such documentary proof exists.
The
form was filled out by the District Registrar who brought it to
Mbabane to have the application processed at the office of the
Registrar. He expected that the form would be signed by either Mrs
Shongwe or Mrs Mkhwanazi, the second Accused. Accused No. 1 knew
about this application and he was apparently
7
anxious
to have it processed and a new birth certificate issued reflecting
his date of birth as being in 1941. The purpose of this is
demonstrated by his letter, which he later wrote and with which he
submitted the birth certificate with a request that the records of
the Department be altered accordingly.
Mrs
Shonwe, who was empowered to process the application, and in so doing
to sign the form in the appropriate place to signify that the
application had been processed, declined to do so and Accused No. 1
thereupon had the application sent by messenger, whose name was
Lawrence, to Accused No. 2 at the High Court. There is no evidence of
any prior arrangement between Accused No. 1 and Accused No. 2 that
this would be done.
When
Accused No. 2 received the form from Lawrence, she asked him whether
there was not anybody in the office of the Registrar who could sign
it. She was told that there was not and she thereupon affixed her
signature in the appropriate space to signify that the application
had been duly processed and that the
8
District
Registrar could issue a new amended birth certificate. In signing the
form she did so in the capacity as Registrar which in terms of the
appropriate legislation includes the deputies and assistants of the
Registrar. In view of what Mr Mngomezulu had told her and in terms of
his instructions, she was entitled to do so.
The
question then arises what did Accused No. 2 represent when she placed
her signature on the certificate. She represented no more than that
she was the Registrar in the wide sense of the word and as we have
seen the Crown case does not establish that she did so falsely.
She
appears to have failed in her duties in signing the form, because as
I have already observed, the application was not in proper form and
there was no documentary proof to substantiate the proposed change.
Furthermore, the Applicant's father was not the proper person to make
the application in the first place. These factors, however, do not
make her guilty of fraud as alleged.
9
A
reasonable Court could not come to the conclusion therefore that the
representation made as alleged in the charge sheet, was so made by
Accused No. 2.
There
is also no evidence that Accused No. 1 was party to what took place
on the transfer of Accused No. 2 and that he had any reason to
believe that she had no power to sign the document. In any event, as
I have observed, by placing her signature on the document, she did
not represent anything other than that she was acting as the
Registrar and that the application had been processed in the office
of the Registrar.
The
charge sheet alleges that the representation was, that the
application to alter the date of birth had been approved by the
Registrar. The document itself does not refer to the assent or
approval of the Registrar. It is my finding that no false
representation was made by either accused as alleged on Count 1. Both
accused are entitled to be discharged on this count.
10
On
Count 2, the allegation is that a representation was made to the
Secretary of the Civil Service Board of Swaziland, that a certain
document to which the birth certificate in question was produced as
authentic proof that the first Accused was born on the 13th of March
1941.
As
far as Accused No. 2 is concerned, I cannot see that she was party to
any representation whatsoever and I cannot find any evidence that
there was in fact a conspiracy or a common purpose to defraud the
Government. This consideration does not apply in the case of Accused
No. 1 who clearly presented this certificate in order to influence
the department to change his date of birth. There is a fatal lacuna
in the evidence supporting this charge. It is alleged that the
accused at the time they made the false representation well knew that
"the said Harry Dlamini was not born on the 13th March 19941 but
on the 13th March 193 6."
There
is no evidence at all as to what Accused No. 1's true date of birth
is. Neither is there any
11
evidence
that either of the accused was aware of such true date of birth.
The
prosecution argued that as Accused No. 1's original birth certificate
reflected his date of birth as the 13th March 193 6, in terms of the
Act, this was proof of such fact. On the other hand, however, there
is an apparently valid certificate stating that he was born in 1941.
Looking at the evidence as a whole, no inference can be drawn either
way.
In
order to succeed on Count 2 or the alternative thereto, the State
would have had to have demonstrated what the true date of birth of
Accused No. 1 was and that the Accused were aware thereof.
It
was necessary to have had evidence of someone who could say when
Accused No. 1 was in fact born. The father of Accused No. 1 himself
could have been called. I appreciate that he must be a very old man
and that there may have been difficulties in this
12
connection.
None of this, however, was put before the Court and there is really
no explanation as to why there is no evidence as to the true date of
birth of Accused No. 1 There may have been other people who know, and
who could have testified to the actual date of birth of Accused No.
2. As things stand, however, there is no evidence before the Court as
to the correct date and it cannot be said that either of the first
Accused or the second Accused well knew that the first Accused was
not born on the 13th of March 1941 but on the 13th of March 193 6.
This allegation and the evidence to support it is an essential part
of the Crown case.
In
the case of Accused No. 2 there are two reasons why her application
must succeed. Firstly, she is not shown to have made any
representations to anybody in regard to the certificate. In regard to
Accused No. 1 and Accused No. 2 it cannot be said that the
representation made by them was false and that it was false to their
knowledge. Both accused must be found not guilty and discharged on
both Count 1 and Count 2 and the alternative thereto.
S.W.SAPIRE
A.J.
26/3/93.
