King v Zwane and Others (NULL) [1994] SZHC 19 (27 April 1994);

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IN THE HIGH COURT OF SWAZILAND


HELD AT MBABANE


REV


CASE NO.27/94


In the Matter between:


THE KING


VS


BHABHA ZWANE


BUDZE MALINGA


GENDANE MALINGA


DISTRICT OF MANZINI 27 APRIL 1994


ORDER ON REVIEW


The accused in this case which came before me on automatic review were charged with contravening Section 3 of the Stock Theft Act No. 5/1982 as amended by Act No. 11/1987. It was alleged in the charge that the accused stole three sheep on the 22nd December 1992. The accused were convicted as charged.


Section 18 (1) of the Act provides in part-


A person convicted of an offence under Section 3 or 4 in relation to any cattle, sheep, goat, pig or domesticated ostrich small be liable to imprisonment for a period of not less than


  1. two years without the option of a fine in respect of a first offence; or

  2. five years without the option of a fine in respect of a second or subsequent offence.


2


The prosecution produced a list of previous convictions in respect of accused numbers 1 and

3.


The list reflected that, accused number 1 had


  1. been sentenced to E200 or 200 days imprisonment by the Magistrate Manzini on the 30.5.83 on a charge of Stock Theft.


  1. been sentenced to 4 years imprisonment by the Magistrate Manzini on the 15.5.89 on a charge of Stock Theft (involving goats)


In so far as accused number 3 was concerned the list reflected that he had been sentenced to E200.00 or 200 days imprisonment by the Magistrate, Manzini on a charge of Stock Theft.

On the basis of these previous convictions, the Magistrate acted in terms of Section 18(1)(b) and imposed the minimum sentence of 5 years on accused numbers 1 and 3. Accused number 2 who was said to be a first offender was sentenced to the minimum sentence of 2 years under Section 18(l)(a). The evidence led at the trial justified the conviction of the 3 accused. The conviction is accordingly confirmed on review. The 2 year sentence imposed on accused number 2 is also confirmed. I have some difficulty with the sentence imposed on accused numbers 1 and 3. Stock is defined under Section 2 (as amended) as any horse, mule, cattle, sheep, goat, pig, domesticated ostrich, domesticated game or the carcass or portion of the carcass of any stock.


3


The penalties set out under Section 18(1) only apply to cases of a contravention of Section 3 or 4 in relation to the listed stock namely, cattle; sheep; goats; pigs; or domesticated ostriches. A previous conviction for the theft of a cow at common law would not for example attract the penalty under Section 18(1)(b) for the simple reason that such convition is not a conviction under Section 3 or 4 of the act. Similarly, a previous conviction for the Theft of a horse under Section 3 would not attract the penalty under Section 18(1)(b) for the reason that a horse is not included under (18)(l). A judicial officer should in all cases be satisfied that a previous conviction relates to a contravention of Section 3 or 4 and that the kind of Stock involved in such conviction is listed under Section 18(1) before applying the penalty provided for under Section 18(l)(b).


In the present case, there was no evidence that accused number 1's previous convictions were under the Act. The offences were recorded simply as Stock Theft. The fact that accused no. 1's second previous conviction reflects that goats had been stolen does not take the matter any further as there is no evidence that the conviction was under the Act. The same applies in the case of accused number 3. The previous conviction was for stock theft with no reference to the Act or the kind of stock. The proper approach would have been to treat the 3 accused as first offenders and to apply the minimum two year sentence under Section 18(1)(a) as the starting point in sentencing accused numbers 1 and 3, taking into account their previous convictions. The previous convictions would be taken into account in the normal way in the sentencing process. Consideration has been given to remitting the case to the Magistrate for the sentence to be re-considered along the lines I have set out.


4


The case has, however, for some unexplained reason taken over a year to be forwarded on review. There should in my view be no further delay in informing the accused as to what their position is. I will proceed to consider an appropriate sentence.


Accused No. 1 has two previous convictions for Stock Theft. In the second conviction in 1989 he was sentenced to 4 years imprisonment. The present offence was commited in 1992 which must have been shortly after his release from prison. He does not seem prepared to mend his ways. I consider that the 5 year sentence, although wrongly applied under section 18(1), is a proper sentence to be imposed on accused No.l. He is is sentenced to 5 years imprisonment with effect from the 27 January 1993.


Accused number 3 has one previous conviction for Stock Theft. He has, however,had a clean record since that conviction in 1983. That is a factor which should be taken into account in his favour. He is sentenced to 3 years imprisonment with effect from 27th January 1993.


The two accused are to be brought before the Magistrate (Mr Mngomezulu) to have the effect of this judgment explained to them and their committal warrants amended accordingly. The return to the Criminal Records Bureau should reflect that the accused were convicted of Theft of goats in contravention of Section 3(a) of Act No. 5/ 1982 as amended.


B. DUNN


JUDGE