Manana and Another v King (NULL) [1994] SZHC 45 (06 July 1994);

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IN THE HIGH COURT OF SWAZILAND


Crim. Appeal No. 34/94


In the matter between:


FLOYD ZENZELE MANANA & JOHN SILINDZA


VS


THE KING


CORAM : Hull, CJ.


FOR FIRST APPELLANT In person


FOR SECOND APPELLANT In person


FOR CROWN Mr. Sibandze and Mr. Simelane


Judgment (6/7/94)


The appellants, with one Raymond Matimba, were each convicted by the Senior Magistrate at Manzini on six counts and sentenced, effectively, to two years imprisonment.


They now appeal against their convictions and sentences.


The charges flow from a break-in at the Evukuzenzele Hypermarket in Manzini on the night of 26th June 1993. The Crown's case was that four men, of whom two were armed, overpowered the security guards at the premises, took their overcoats, forced them to get into the back of a van which was then locked, and thereafter by means of house breaking equipment attempted to gain entry to an inner safe which contained takings of some E145 000. While trying to do so, they were apprehended by a police party that was apparently acting on information received. One of the four subsequently escaped.


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The Senior Magistrate evidently thought, as I do, that the six charges in some respects overlapped.


The first count consisted of unlawfully and without lawful excuse pointing a pistol at the guards. Although he did convict the accused on this charge, it was clear that almost immediately after doing so, when he came to impose sentence, he had a change of mind. He did not impose penalties for this offence. The criminality involved in the charge can be subsumed adequately under subsequent charges. I think that the correct course on the appeal is to quash the conviction on count 1.


The second count was that the accused unlawfully and intentionally broke into and entered the hypermarket with intent to commit theft at night, and the fourth count was that they were unlawfully and without reasonable excuse in possession of house breaking implements. The Senior Magistrate regarded these two counts as being the nub of the matter. He imposed on each appellant, in each case, a term of two years imprisonment, the terms to run concurrently.


On the remaining three counts, namely attempted robbery, the illegal possession of a pistol, and the illegal possession of ammunition, he did not impose any penalties in respect of the two appellants.


Subject to two reservations - namely that on the Crown's evidence, if accepted, it appears to me that this was really an attempted armed robbery rather than a breaking and entering (the former being a more serious matter in my view) and that I can see no real reason for not imposing penalties in respect of the counts of unlawful possession of a pistol and ammunition - I am of the view (subject of course to considering the grounds of appeal) that the Senior Magistrate in substance correctly characterised (as it were) the nature of the Crown's case.

The appellants advance similar grounds of appeal.


Their respective defences, at the trial, were that they and the third accused had been going about their lawful business, in the vicinity of but not within the hypermarket.


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The police had detained them and forced them to go with them to the hypermarket, where they beat them up and, in effect, framed them.


Both appellants, in their grounds of appeal, said that the record showed material contradictions between the evidence of the Crown witnesses.


The manageress of the hypermarket, who had been brought by the police to the scene after the men were detained, said that she had seen one of the house-breaking implements, namely a grinder, there. On the other hand, so it was said, the effect of police officer Gama's evidence was that by the time she was brought to the hypermarket, the grinder had already been removed to the police station. There is no substance in this complaint. The short answer is that the record does not disclose the contradictions alleged.


It was also said by each appellant that there were contradictions between the evidence of two of the security guards who were called as Crown witnesses. One said that the intruders' faces had been covered, and he also agreed that after the guard had been released from the van, the police had assaulted the appellants. The other one claimed that at least two of the men were unmasked, and denied (as did the manageress and the police officer) that he had seen the police assault the accused.


The record does disclose these apparent contradictions. The Senior Magistrate himself did not exclude the reasonable possibility that the police had assaulted the appellants. He indicated in his decision that he tended to think that they did do so. It is also clear from the record that no reliance could safely be placed on the evidence of either of the guards as to the identities of the intruders who forced them into the van - i.e. before the police arrived.

The appellants' version of events at the trial, however, has one apparent flaw - and a serious one. They flatly contradicted evidence that they had already give on oath when, earlier, they had sought bail.


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On that earlier occasion, each of them had acknowledged that the police had found them inside the premises of the hypermarket.


It is evident from the Senior Magistrate' s judgment that he positively disbelieved the appellants' evidence at the trial. There can be no doubt, in my view, that he had ample reason for doing so, and there was evidence before him, namely that of the police officer, on which he could reasonably have found that the appellants were indeed caught in the act on the premises.


The other grounds of the appeals against convictions, are, with respect, inconsequential. They amount to no more than attempts, without substance, to argue or re-argue possible interpretations of the evidence. None of them is sufficient to demonstrate error by the trial Magistrate.


In respect of all except the first count, the appeals are dismissed and the convictions are affirmed.


There is no basis for interfering with the sentences. The effective sentences were in my view very light, having regard to the gravity of the incident. The appeals against sentences are therefore dismissed and the sentences confirmed.


DAVID HULL


CHIEF JUSTICE