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.
2
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.
3
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.
4
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
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