Zwane and Another v King (NULL) [1994] SZHC 47 (10 July 1994);

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IN THE HIGH COURT OF SWAZILAND


Crim. Appeal No. 17/94


In the matter between:


JABULANE ZWANE & MANDLA SIMON MSIBI Appellants


Vs


THE KING Respondent


CORAM : Hull, CJ.


FOR FIRST APPELLANT In Person


FOR SECOND APPELLANT In Person


FOR THE CROWN Mr. Nduma


Judgment (10/7/94)


The appellants were convicted by the learned Principal Magistrate, sitting at Manzini, on 2nd April 1992, on two counts of robbery. The first appellant was also convicted on two further counts of house breaking with intent to steal and theft, and one count of unlawful possession of a rifle.


The Principal Magistrate sentenced the first appellant to the following terms of imprisonment:


  1. First count of robbery: 5 years imprisonment with effect from 8th September 1992.

  2. Second count of robbery : 5 years imprisonment "with effect from 8th September 1992", the sentence also being expressed to be "consecutive" to that on the first count.


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  1. First count of house breaking : Twelve months imprisonment with effect from 8th September 1992.

  2. Second count of house breaking : Twelve months imprisonment with effect from 8th September 1992.

  3. Firearms count : Twelve months imprisonment with effect from 8th September 1992.


He also expressed the sentences on the last three counts to run concurrently.


The Principal Magistrate sentenced the second appellant to three years imprisonment on each of the two counts of robbery. In each case he said that the sentence was to be "with effect from 1st March 1992" but again he went on to say that the sentences were to run "consecutively".


There is no merit in the appeals against the convictions.


The first appellant sought leave to appeal on 8th April, 1993. That was well out of time. However, the application was not put before the court timeously. The Crown not objecting, it has proceeded on the basis that leave to appeal is granted.


The first appellant is nevertheless confined to his written grounds of appeal.


On conviction, his first complaint is that he was convicted on the second count of robbery in the absence of the complainant, and thus denied the right to cross-examine him, and further that no one identified correctly goods that he allegedly took. The record shows otherwise.


The second complaint was that the court convicted him on uncorroborated evidence and also as a result of an agreement by the police with the second appellant for the latter to implicate him falsely. A further complaint was in effect that the evidence did not


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prove the charges against him beyond reasonable doubt. There is however ample evidence on which the Principal Magistrate could have convicted the first appellant on each count. At the trial, the first appellant did not challenge the testimony of his co-accused, i.e in cross-examination, and there is nothing to indicate that the Principal Magistrate relied on the latter's testimony in convicting him.


On the question of sentence, the first appellant appears to believe that he has in effect been imprisoned for 13 years. This is incorrect.


The Principal Magistrate's sentences are not with respect, well-expressed, but his intention was nevertheless clearly to impose an effective term of 10 years imprisonment calculated from 8th September 1992. On their proper interpretation, though after some hesitation. I am of the view that the sentences on the first two counts of robbery are to be taken as terms of b years imprisonment each to run consecutively from 8th September 1992.


The offences were of a very serious nature and the first appellant had previous convictions. It cannot be said in any circumstance that the sentences were excessive.


I therefore make the following orders in respect of the first appellant's appeal:


  1. Leave to appeal out of time is granted.

  2. The appeal against the convictions and sentences is dismissed and the convictions and sentences are affirmed, the sentences however not to be calculated from 8th September 1992 but instead taking into account the time already served in custody on these charges, i.e. prior to the date of the convictions.


There is no merit either in the appeal of the second appellant against his convictions. There was ample evidence on which he could have been convicted. The record shows that he was given full opportunity to cross-examine Crown witnesses and to make his defence.


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The sentences imposed on the second appellant on the two counts of robbery and in my view to be construed in the same way as for the first appellant, with the result that he is serving three years imprisonment on each count, the sentences to run consecutively from 1st March 1992. Although he has asserted otherwise in his notice of appeal, the second appellant has a previous conviction for housebreaking. On the evidence he is clearly a dangerous if somewhat facile man. The sentences cannot in any way be said to be excessive.


It appears that the second appellant had before 18th October 1993 (the date of the notice of appeal included with the record) filed an earlier notice of appeal. The Crown again has not objected to the appeal proceeding out of time, to the extent that leave to appeal may be needed.


In relation to the second appellant's appeal I make the following orders:


  1. Leave to appeal out of time is granted, to the extent that such leave is necessary:

  2. The appeal against the convictions and sentences is dismissed and the convictions and sentences are confirmed, the sentences however not to be calculated from 1st March 1992 but instead taking into account the time already served in custody on these charges, i.e. prior to the date of the convictions.


DAVID HULL


CHIEF JUSTICE