THE HIGH COURT OF SWAZILAND
the matter between:
OF MANZINI 27TH SEPTEMBER 1994
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-
light strokes by Prison authorities, then discharged.
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.
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".
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.