THE HIGH COURT OF SWAZILAND
CASE NO. 1/1993
the matter between
THE CROWN : Mr.
THE ACCUSED : Mr
three accused are jointly charged with the crime of attempted murder
on counts 1 and 2 and with the crime of robbery on count 3. Accused
no. 1 is charged with the possession of a firearm and ammunition in
contravention of the Arms and Ammunution Act no. 24/1964 on counts 4
and 5 respectively. He is further charged with entering Swaziland in
count 6 contravention of section .14(2) (c) of the Immigration Act
1964. Accused no. 3 is also charged with entering Swaziland in
contravention of section 14(2)(c) of the Immigration Act on count 7.
should point out that the sections of the Arms and Ammunition Act,
which accussed no.l is alleged to have contravened have not been
correctly cited. The ammending Act no.6/1988 did not change the
original numbering of the sections of the arms and Ammunition Act
1964. The possession of arms and ammuntion is dealt with under
Sections 11 and 14 of the Act and the reference should not be to a
contravention of sections 2 and 3 of the amending Act no. 6 of 1988.
Accused no. 1 was legally represented at the trial and the body of
the charges clearly particularised the offences, as the possession of
a pistol and the possession of (5) five rounds of ammunition. Accused
no. 1 was, in the circumstances, not in anyway prejudiced by the
citation of the incorrect sections.
accused pleaded not guilty to all the counts.
1,2 and 3 in which the complainants are Justice Nxumalo; Wesley
Carmichael and Rose Mlungu respectively, may conveniently be dealt
with together. The evidence led by the crown on these counts fully
established the commission of the offences. Three men entered the
Fairways Supermaket in Nhlangano before 4.30 p.m., Monday 22nd of
June 1992. Two of the men approached the office of the Manager,
Justice Nxumalo and one of them fired a shot through a glass
partition in the direction of the Manager. According to Nxumalo the
shot whizzed past his forehead and the bullet was found embedded in
the wall on his left hand side. One of the men entered the office of
the cashier, Rose Mlungu. The man was armed. He demanded the "
concluded that the man wanted money. The man took the green leather
bag into which Rose had placed the money after cashing up for the
day. The bag was locked with a padlock. The two men left and when
they got to the main door the third man took the green bag and placed
it in a plastic bag. The three men disappeared. At about that time,
Wesley Carmichael, the deputy sheriff for the Shiselweni District,
was driving a light delivery vehicle towards his mother's house along
4th avenue. He saw a man trotting into the middle of the road ahead
of him. The man suddenly drew a gun and fired at Carmichael. The
bulllet struck and shattered the windscreen. The bullet struck the
windscreen more on the driver's side of the cab and exited below the
rear window. Carmichael continued driving and the man jumped to the
right handside of the road from where he fired a second shot which
struck Carmichael on the right upper arm. Carmichael continued
driving. He looked through the rear view mirror and saw the man
running in the street in the opposite direction to which he
(Carmichael) was driving. Carmichael managed to get to his mother's
house from where he was taken to the Nhlangano Clinic. He was
transferred to a clinic in South Africa and had to receive specialist
treatment. A bullet remains lodged above his diaghram. As set out
earlier I am satisfied that the crowns's evidence proved the
Commission of the two attempted murder and robbery charges.
Nhlangano police were telephoned as soon as the robbers left the
supermarket. The police were given a
description of the clothes worn by the robbers. The description was
given by Rose Mlungu and Bhekie Zwane, a shop assistant. Zwane had
first seen one of the robbers when he entered the shop and enquired
as to the price of vegetable seeds from Zwane. The man later left and
returned with two other men and the robbery took place. The
description given by these two witnesses was that the man with a gun
was wearing a white pullover with a hood. The pullover appeared to be
a track suit top. He had a balaclava over his head. The balaclava was
brown with cream stripes. He was wearing sunglasses and dark grey
trousers. The second man, who removed the money bag from Roses
office, was wearing a light coloured shirt and trousers. The third
man was wearing a distinctive multi-coloured "tie and dye"
V neck shirt which the witnesses described as a Zambian shirt. The
man had the shirt over a brown long sleeved jersey.
was able to give the police a description of the clothes worn by his
assailant before being tranferred to South Africa. He told the police
that the gunnman was wearing a" white tracksuit like top "
and dark coloured trousers. The man had on a dark balaclava and
on the description of the clothes given by Rose and Zwane and the
directions given by members of the public the police drove towards
Ngwane Training College. It
not long before three men, wearing clothes that matched the
description given by the two witnesses, were spotted running across a
clearing in a nearby forest. Shots were fired by the police and
accused nos. 1 and 2 were arrested. Zwane was present when the
arrests were made. He was able to immediately confirm that the two
persons were wearing the clothes he had earlier described.
two accused were questioned and accused no. 2 produced a green money
bag from beneath a fallen tree. It started getting dark and the
police returned to the police station with the two accused.
police had taken the precaution of warning the taxi-drivers in
Nhlangano to be on the look out for persons who might request to be
driven out of Nhlangano that evening. One of the taxi-drivers Bhekie
Hlophe told the court that he was approached by a man at about 8.00
p.m. The man requested that he be driven to Manzini. Hlophe informed
him that the fare to Manzini was E150.00. The man replied that he
only had E100.00 which he would pay on arrival at his house at
Fairview Manzini. Hlophe instisted on the full fare being paid in
advance. The man explained to Hlophe that he had come to Nhlangano to
collect E30.00 which was owed to him and thereafter requested Hlophe
to assist him in securing accomodation for the night. Hlophe
suggested that the man should approach the police. He gave the man
directions to the police station. The man walked away and Hlophe
followed him in his motor vehicle. Hlophe ensured that the man
entered the police station. The man was wearing the "Zambian "
shirt described by Rose and Zwane and was pointed out by Hlophe as
accused no. 3. The three accused thus ended up at the Nhlangano
police station on the night of 22nd June.
to the investigating officer the following took place on the next
green leather bag and its contents (2, 178.48 in cash and a cheque
in the sum of E10.00) were identified by Rose and the shop manager
Mr. Nxumalo as having been taken in the robbery.
three accused were taken to the forest where accused no. 1 and 2 had
been arrested. Accused no. 1 pointed to a spot in the forest where a
Makarov pistol with 5 rounds of ammunition was recovered. Accused
no. 1 also pointed out a brown balaclava which had sunglasses in it.
3 accused were taken to the place of the robbery where they were
the items of clothing which had been described by Rose , Zwane and
Justice Nxumalo were identified by the three witnesses at the police
station. The items had all been recovered from the three accused
police took possession of the spent bullet which was embedded in the
wall of Justice Nxumalo's office. Carmichael's vehicle was taken to
the police station by his sister. The path of the bullet that
was traced and a spent bullet was found on the tailgate of the
vehicle. The two spent bullets and the Makarov pistol were sent to
the forensic Science Laboratories in South Africa for ballistics
analysis. Warrant officer Van Der Merwe who carried out the analysis,
told the court that the spent bullets had been fired from the Makarov
pistol. He exhibited photographs showing the spent bullets alongside
test bullets which had been fired from the pistol and explained how
he had reached his conclusions. His evidence was not challenged.
was able to point out the white track suit top he had described, in
evidence of the arrest of the accused, based on the very clear
evidence of what the robbers were wearing is overwhelming. The
recovery of the money bag, and the result of the ballistics tests on
the firearm pointed out by accused no 1 and the 2 spent bullets
placed the identity of the 3 robbers beyond any doubt.
ruled at the conclusion of the crown's case that accused nos. 2 and 3
had no case to answer on count 2 (attempted murder of Carmichael).
The two accused were found not guilty at that stage.
accused each gave evidence on oath denying all knowledge of the
robbery and attempted murders. Accused no. 1 told the court that he
was arrested by the police whilst waiting for a friend who had gone
to relieve himself in the
He told the court that the police gave him the white pullover to wear
after his arrest. He explained that a police sniffer dog had found
the Makarov pistol in the forest. I have no hesitation whatsoever in
rejecting as totally false the evidence given by accused no. 1. The
white track suit top was worn by him and was identified by the crown
witnesses. The spent bullets recovered from Nxumalo's office and
Carmichels's vehicle were fired from the pistol which he pointed out
to the police.
no. 2 denied having been arrested in the forest. He told the court
that he was arrested in town, near Metro Cash and Carry Wholesalers.
Accused no. 2 was clearly identified by his clothing and was arrested
in the forest. He pointed out the green money bag.
no. 3 gave a long story of how and why he came to Nhlangano. It would
have been very simple for him to take the police to the place where
the car he claimed he had come to collect was parked. He could easily
have told the police the name of the person who brought him to
reason he gave in court for his presence in Nhlangano differed from
that given to the taxi drive.
evidence stands to be rejected as false.
is quite clear that the 3 accused were acting in furtherance of a
common purpose when they entered the supermarket. They were all near
the manager's office when the shot was fired. Rose was immediately
thereafter, robbed of the E2.188.48. I find accused 1,2, and 3 guilty
as charged of attempted murder on count 1 and of robbery on count 3.
so far as count 2 is concerned there can be no doubt as to accused
no, 1's intentions. The first shot was fired at Carmichael who was
fortunate not to have been struck. The accused then jumped to the
side and fired the second shot. The reason for all this is not at all
clear. The deputy sheriffs do not wear a uniform. Carmichael was not
aware of the robbery at the Supermarket and did not do anything which
could have been interpreted as an attempt to apprehend or interfere
with any of the robbers. I find accussed no. 1. guilty as charged on
no.l had no permit to posess the pistol and 5 rounds of ammunution.
Subject to the comments I made earlier regarding the sections under
which accused no. 1 was charged on counts 4 and 5, I find him guilty
of possession of a firearm and 5 rounds of ammunution in
contravention of sections 11(1) and 11(2) respectively of Act No.
24/1964 as amended.
14(2)(c) of the Immigration Act no. 17/1982 under which accused nos.
1 and 3 were charged on counts 6 and 7 provides that any person who
unlawfully enters or is unlawfully present in Swaziland in
contravention of the Act shall be guilty of an offence. The charge
against the accused was particularised as unlawfully entering
Swaziland. According to the investigating officer accused no. 1 was
asked what his nationality was. He replied that he was Angolan. He
was asked if he had a residence permit to remain in Swaziland.
Accused no. 1 did
produce one, but explained that he had entered Swaziland in 1988 on a
valid passport which had since gone missing. The accused explained
that he had a certified copy of his passport which he used for travel
between Swaziland and Maputo after the loss of his passport. The
police did not seek any further details regarding the accused's last
date and place of entry into Swaziland. In any event the enquiry by
the police was as to whether the accused had a permit to be in
Swaziland and not as to whether he had entered Swaziland lawfully. I
find accused no. 1 not guilty he is acquilted and discharged on count
position of accused no. 3 is that he told the police that he had
entered Swaziland in about 1978.
no. 3 was not questioned as to the legality or otherwise of his entry
into Swaziland. He handed to the police his graded tax Certificate
which reflected that he was a subject of the chief of eLwandle,
outside Manzini. It is not, quite clear to me how an alleged illegal
immigrant can become the subject of a chief in Swaziland. The accused
has been in Swaziland for about 15 years. I do not see what interest
is sought to be served by prosecuting him for an alleged illegal
entry in 1978.
find accused no.3 not guilty, he is acquitted and discharged on count
summing up, I should again refer to the need for the police to pay
proper attention to their investigations. Their movements, in and out
of the police stations with suspects should be recorded in the
books that are kept at each police station. Further it is no business
of the police to direct suspects to apologise to complainants. There
is acceptable evidence that that was done in this case.
function of the police was to gather the evidence and present it to
the Director of Public prosecutions. Requests if any, by the accused
to see the complainants should have been handled by officers other
than the investigating team.
sum up accused nos. 1, 2 and 3 are found guilty of attempted murder
on count 1.
no.1 is found guilty of attempted murder on count 2.
nos.1, 2 and 3 are found guilty of robbery on count 3.
no. 1 is found guilty of possession of a Makarov pistol in
contravention of section 11(1) of Act no. 24/1964, as amended, on
no.1 is found guilty of possession of 5 live rounds of ammunition in
contravention of Section 11(2) of Act no. 24/1964, as amended, on
no. 1 is found not guilty, he is acquitted and discharged on count 6.
no.3 is found not guilty, he is acquitted and discharged on count 7.