King v Ginindza (NULL) [1994] SZHC 65 (27 September 1994);

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IN THE HIGH COURT OF SWAZILAND


HELD AT MBABANE


REV.


CASE NO.113/94


In the matter between:


THE KING


Vs


NHLANHLA GININDZA


DISTRICT OF MANZINI 27TH SEPTEMBER 1994


ORDER ON REVIEW


The accused, a male of 19 years of age, was charged with and convicted of robbery by the Acting Senior Magistrate Mr Muira on the 31st August 1994. The property involved in the robbery consisted of a television set; a hifi set; a television battery and 5 cassettes all valued at approximately E1,121,50. The accused was sentenced as follows-


Three light strokes by Prison authorities, then discharged.


The accused was unrepresented at the trial. The record does not reflect that the accused's right to legal representation was explained to him at the commencement of the trial. I had occasion in the case of SIMON MAKHANYA criminal APPEAL NO- 7/1994 (unreported) to refer to two Court of Appeal decisions dealing with the right of an accused to legal representation and the failure by a Court to inform an accused of such right. The irregularity on the part of the acting Senior Magistrate is in the light of these decisions,fatal. The conviction and sentence are set aside.


2


I will repeat what I stated in conclusion in MAKHANYA'S case supra that "it is imperative that a roneoed form be prepared for use by all Magistrates, setting out the rights of which an undefended accused should be advised at the commencement of a trial. The form should be signed by the accused and kept as part of the record of the trial".


In conclusion, I find it necessary to point out firstly that had the conviction been confirmed on review I would have had serious difficulties with regard to the sentence. Robbery is a serious offence and a sentence of a moderate whipping does not strike me as being appropriate. Secondly, a sentence of whipping by a Court can only be carried out after confirmation of such sentence on review by the High Court. See Section 84(1) of the Magistrates Court Act No. 66/1938 (as amended) and Section 309 of the Criminal Procedure and Evidence Act. No.67/1938 (as amended). A judicial officer is in the circumstances required to endorse the committal warrant to that effect and to transmit the record for review, as a matter of urgency. That was not done in this case. Fortunately for the accused the sentence was no carried out prior to the issue of this order.


B. DUNN


JUDGE