THE HIGH COURT OF SWAZILAND
APPEAL CASE NO. 23/93
the matter of:
MAGWAZA : APPELLANT
: LABE A.J.
THE CROWN : Mr. Sigwane
APPELLANT : In Person
Appellant, a Swazi male of 25 years of age, is charged with two
counts under the Theft of Motor Vehicles Act No. 16/1991,(the Act)
offence of contravening Section 3(1) of the Act in that upon or about
the 14th February., 1992, and in or near Malindza Area, the appellant
wrongfully and intentionally stole a motor vehicle namely a Nissan 1
tonner LDV bearing the registration number SD 196 SM , the property,
of or in
accused is charged with contravening Section 10 of the Act in that
upon or about the 14th February, 1992 and in or near Malindza area,
the appellant unlawfully drove a motor vehicle namely a Nissan 1
tonner LDV bearing registration number SD 196 SM which was false.
3(1) of the Act reads as follows:-
person who steals a motor vehicle or receives a motor vehicle knowing
it to be stolen is guilty of an offence........" .
provisions of Section 4 (1) (b) of the Act relevant to this count are
that, "unless the. contrary is proved by him, a person shall be
presumed to have committed an offence under Section 3 and on
conviction punished accordingly if he is found in possession of a
motor vehicle, engine or chassis number of which have been altered.
evidence discloses that the chassis no. and the engine no. of the
vehicle in question had been altered or tampered with This evidence
is suffcient to have brought the presumption contained in Section 4
(1) (b) of the Act into operation.
Crown evidence established that the accused apparently had possessed
the motor vehicle in 1991; prior to the promulgation of the Motor
Vehicle Theft Act 1.6/1991.
Appellant said that he had acquired the vehicle from one David
Zikalala. He did not say when the vehicle was acquired. David
Zikalala was not called as a witness. However, the appellant relied
on an order of the Magistrate of the Lubombo district which released
the motor vehicle to him on 24th May, 1990 or 24th May 1991. (The
dates differ on the order). The difference however, is not material
to this judgment.
particulars of the vehicle appearing on the order are:
No. : NO. SD 196 SM
: Nissan LDV
No. : E120760
No. : 336359
Appellant did not give evidence as to the circumstances under which
the order was made, or why the vehicle was released to the Appellant.
the expert witness called by the Crown examined the vehicle, the
engine no. was E120760 and the Chassis no. Y000 5637. In other words
the engine no. was the same as the engine no. on the vehicle released
to the Appellant but the chassis no. was different.
evidence of the Crown showed that the registration no. SD 196 SM
related at all material times to a 1987 Toyota Corrolla, the property
of a company in Manzini.
is not clear to me whether or not the chassis of the vehicle ordered
to be returned to the Appellant by the Magistrate at Lubombo, is the
same chassis as that inspected by the Crown expert witness.
it was the same vehicle, the Appellant could have stolen it on or
about 14th February 1992, the date on which the offence is alleged to
have taken place, I am aware that the onus is on the accused to rebut
the presumption created by Section 4 (1) (b) of the Act. Somewhat
reluctantly, I have come to the conclusion that the Appellant has
done enough to rebut the presumption on a balance of probabilities.
was not put to the Appellant in the Court of quo that the vehicles
were not the same. And I find that they were the same notwithstanding
the difference in the chassis numbers. It is common cause that the
chassis number had been altered.
make it clear that I do not hold that the vehicle was not stolen by
the accused on some date other than on or about 14 February, 1992. We
was however, not charged with having stolen it on any other date.
order that the conviction and sentence on count 1 be set aside and
the vehicle is to be returned to the Appellant.
it does not appear from the Notice of Appeal that there was any
appeal against count 2, Mr. Sigwane, who appeared for the Crown
showed an impartiality which one expects from an officer of the
court, argued the matter as if the Notice of Appeal covered count 2
as well, and I have decided to take a lenient attitude to the Notice
evidence of one of the state witnesses is that the vehicle was parked
next to a private road.
type of road i.e. whether it was a public or a private road was not
dealt with by any other witness for the Crown.
the Act does not specifically say so, it seems to me that the road
referred to must be a public road. Mr. Sigwane informed me that the
Road Traffic Act of 1965 applies to public roads. There is no
obligation to register a vehicle which is only to be used on a
conclusion is borne out by the definition of "motor vehicle"
which is set out in Section 2 of the Act namely:-
vehicle means any vehicle self propelled by mechanical or electrical
power adapted or intended to be used on roads for the purpose of
conveying persons or goods and shall include any part of such
state has not proved beyond a reasonable doubt that the road upon
which the Appellant drove the vehicle is a public road.
the above reasons, it seems to me that the conviction and sentence on
count 2, as well must be set aside, and I so order.