THE HIGH COURT OF SWAZILAND
Appeal Case No. 48/94
the matter between:
APPELLANT In person
THE CROWN Miss Mndzebele
appellant, a South African, was arrested at Manzini on 18th February
1994 on suspicion of having stolen a bronze Toyota Cressida motor car
in South Africa on or about 24th December 1993 and brought it into
police officer who testified that he had made the arrest, Constable
3034 Dennis Msibi, gave evidence that on information received he went
to the Manzini Mall parking area where he found the vehicle. It then
bore the registration number HGL 245 T. The constable noted that a
window in the car was broken. The vehicle was unoccupied. He awaited
the arrival of the driver. Presently the appellant appeared, opened
the car with a key, and got in.
constable then introduced himself. He informed the appellant that he
suspected the car to have been stolen and questioned him. Thereafter,
because the appellant did not at his request produce
as to the registration of the vehicle and, shortly, ceased to respond
to his questions, he arrested him.
constable did mention in his evidence in chief that he had called for
assistance from other officers. He did not say then that on the way
back to the police station, the appellant ran away and was shot in
the hand by a police officer. However in cross-examination, he denied
that he was the officer who opened fire. A subsequent prosecution
witness - 3131 Constable Dlamini - said that he and 2932 Constable
Msome responded to a call, and found Constable Msibi in the car park
with the appellant, and that Constable Msibi then told the other two
officers to take the appellant and the vehicle to the police station.
Constable Dlamini said that it was he who shot the appellant, after
firing three warning shots, when the appellant ran away.
the trial, during the presentation of the prosecution's case, the
appellant was of his own choice unrepresented.
person from whom the car was allegedly stolen was a Mr. Bessinger, a
76 year old commercial buyer from De-Dewr in the Vereeniging
district. He testified at first, on two occasions (the second when
questioned about this), that the registration number of his vehicle
was "NPS" 677T. However, just before the court below
inspected the vehicle, he intervened to say that he wished to correct
an error, and that the prefix was in fact "GMC". That sort
of thing, of course, from time to time happens during a trial, for
reasons that are not necessarily significant. He was saying that he
was the owner of a bronze Toyota Cressida car, which he had put away
in a garage on 24th December 1993 and which he found to be missing on
28th December. After inspecting the vehicle at the trial, he also
said that he recognised it because one wheel had been painted black,
in contrast to the other three silver - painted wheels, and that he
did observe that the black paint had been scraped off that wheel
Bessinger produced at the trial a registration certificate with the
number GMC 677 T. There is no issue at all that this document is
anything other than genuine. Mr. Bessinger, however, did explain in
his evidence that it was not the most recent document of registration
the licence had to be renewed in December 1993. A week after the car
had been stolen, he therefore paid the licence fee for 1994, and a
"clearance" certificate was attached to the registration
certificate which he gave to the police. He said that he had hoped
for a refund if the car was not recovered.
Bessinger also said that the car, when he had looked at it during the
trial, had had its seats changed.
was the first witness for the prosecution. At the conclusion of his
evidence, the learned Senior Magistrate, then asked the appellant
whether he wished to adduce any evidence with which "to counter"
the evidence of ownership by Mr. Bessinger. The appellant stated that
he had none to present.
Senior Magistrate then proceeded to make a ruling to the effect that
for the purposes of section 16(4) of the Theft of Motor Vehicles Act
1991, "sufficient" proof of ownership of the vehicle had
been given by Mr. Bessinger. He ordered the vehicle to be released
unconditionally to him, at that point in the trial.
after that, according to the record, the Senior Magistrate stated:
further crowded out by (preferential case No. 88/94).
trial date set 11/3/94".
is next recorded that the public prosecutor then applied to have the
original registration papers handed back to Mr. Bessinger,
photocopies being substituted, and that having satisfied himself that
they were true copies the Senior Magistrate agreed to this.
it is recorded that "in reply to the application" the
appellant at that point objected, to say "The motor vehicle is
not the complainant's. It is for one 'Mpho'".
public prosecutor then explained that he was referring to the
documents, and the appellant then said that he agreed.
appellant gave evidence in his own defence. He said that he had been
lent the car by a Mr. Serrotsane to visit Swaziland; and that he did
not know that it had been stolen. He explained that he ran from the
police because they had threatened to assault him, and also with a
long jail term.
Senior Magistrate acquitted him of stealing the vehicle but held him
guilty of knowingly receiving stolen property.
appellant now challenges his conviction and his sentence.
the appeal he was unrepresented. Although there is a notice of appeal
filed by Ben Simelane and Associates, attorneys, he said at this
hearing that he was not represented and that he wished to conduct his
appeal in person.
advanced, crisply and articulately, two grounds of appeal against his
first was that in his evidence Mr. Bessinger contradicted himself as
to the registration number of the car that he said had been stolen
from him - namely in the conflicting evidence that he gave as to that
number. The appellant said that this showed that he was lying. I
think that it is understandable that a man, convicted of knowingly
receiving a stolen motor vehicle, might take such a point but his
conclusion is not in my view justified. Mr. Bessinger was 76. He did,
according to the record, correct himself before the time came to
inspect the vehicle. He eventually said that he could identify it by
its colour and make, and by distinctive signs on one of its wheels.
respect to the Senior Magistrate, however, it was in my view not
right for him to release the vehicle to Mr. Bessinger at the point of
time in the trial when he did so, and in the way in which he did so.
The accused was then unrepresented. Only one Crown witness had been
heard. The record does not disclose that the appellant was given an
opportunity, before the magistrate ruled that the car should be
to Mr. Bessinger, to object to that. What the Senior Magistrate did
was to ask the appellant whether he intended to call evidence
disputing the car's ownership. That is not the same thing as asking
an accused person, before the prosecution's case has been completed,
whether he objects to the release of the vehicle to the person whom
the Crown contends to be the owner.
is evident here from the record that, as it happened, this
unrepresented accused very soon afterwards made it clear that he did
indeed object to the car's release. His objection, when he made it,
was disallowed not on the merits because by then, in consequence of
the Senior Magistrate's ruling, the remaining proposal - and the one
to which the accused actually agreed - was that the original
documents be copied and released to Mr. Bessinger.
the Senior Magistrate asked the appellant, at the conclusion of Mr.
Bessinger's own evidence, whether he wished to adduce evidence to
counter it, I am sure that his intention was to inquire whether, when
the time came for him to present his defence, he intended to do so.
But with respect, it was not the right question to put to the
appellant. The proper question was whether or not the appellant
contested the issue of ownership, as distinct from his own criminal
liability - i.e. whether the true ownership was a live issue.
an accused person is represented by counsel, there will be occasions
on which, to expedite the proceedings, the presiding judge can safely
ask that question. Where the accused is unrepresented, however, great
care must be taken. Generally, I am inclined to think that it is
undesirable. Here, the appellant had already intimated in his
cross-examination of Mr. Bessinger that he regarded the vehicle as
belonging to his friend. It was not enough, in any event, simply to
ask him whether he was calling evidence himself on the issue. At the
close of the whole case, he might have chosen simply to make
submissions on the whole of the evidence. In any event, his rights in
respect of the calling of evidence had not been explained to him at
the point when the Senior Magistrate intervened, and he was never
asked, in terms, whether he objected to the return of the vehicle.
a matter of fact, Mr. Bessinger had revealed some confusion as to the
correct registration number of the car which was stolen from him.
to the record, the current registration papers were not produced. The
car he inspected at the trial did not have the same seats as his
stolen vehicle. The appellant's evidence, in due course, was that it
was lent to him by Mr. Serrotsane.
of these things, in my view, ought to have been weighed before the
car was released to Mr. Bessinger. The appellant himself, genuinely,
may not have been in a position to call evidence to rebut that of Mr.
Bessinger. At the end of the case, the Senior Magistrate may well
have reached the conclusion to which he had come, but he ought to
have heard all of the evidence first.
course taken constituted in my view a serious irregularity.
second ground of appeal against conviction was that the appellant was
not given an opportunity to call Mr. Serrotsane as a witness. The
record shows however that at the close of the prosecution's case, the
Senior Magistrate gave the appellant an opportunity both to retain a
lawyer and to arrange to call his witness. It shows too that the
defence's case was eventually closed, after the appellant had gone
into the witness box to testify on his own behalf, without any
further indication being given that it was desired to call a further
witness or to obtain a further adjournment for that purpose. It is
also to be noted that in his evidence, the appellant described Mr.
Serrotsane as a close friend (though,admittedly, one who lived in
record does disclose another unusual aspect about this criminal
trial. The appellant was represented, during his presentation of his
defence, by a Mr. Mnisi. According to the records of the High Court,
Mr. Mnisi has not been admitted to practice as an advocate or as an
attorney. Crown Counsel has informed me on this appeal that he was in
fact an articled clerk employed by a firm of attorneys. I assume
therefore that he was qualified to appear and did appear under the
dispensation in section 19(3) of the Legal Practitioners' Act, 1964.
Whether it can be said, in those circumstances, that the appellant
had legal representation during the last part of his trial is a
I would like to reserve my view. In this particular case however, it
is apparent that Mr. Mnisi in fact represented the appellant with
Senior Magistrate gave summary reasons, ex tempore, for his judgment.
In itself, that is unexceptionable. Magistrates have heavy workloads.
He did set out clearly, in summary, the basis for his judgment.
his findings are analysed, however, it can be seen that he first gave
his reasons for concluding that the vehicle had been stolen and, as I
have already explained, he had in fact decided at the conclusion of
the evidence of the first Crown witness that it belonged to Mr.
in his reasons, he considered the Crown's submission that it was to
be inferred that it was the appellant who had stolen it. He
concluded, as a finding of fact on that submission, that it was
reasonably possible that the appellant had indeed acquired it from
Mr. Serrotsane. It really follows from this that in order for the
appellant to be under any criminal liability, it would have to be
shown that he knew that Mr. Serrotsane or some other person had
stolen it. The Senior Magistrate also found, on a question that had
arisen during the trial - which I do not need to go into - that the
appellant may genuinely have intended to return the car to Mr.
Serrotsane in South Africa when the temporary residence permit of the
appellant in Swaziland expired on 28th February 1994.
Senior Magistrate then turned, immediately, to consider the
appellant's evidence which, in certain respects that he characterised
as crucial, he proceeded to reject.
considering his reasons, there is an observation that I wish to make
at once. It is of course open to a court of law, if the inference is
justified on the evidence, to conclude that although it is not
satisfied that an accused person actually stole something,
nevertheless it is sure that he received it knowing it to have been
there is a danger, of which the court must be conscious, and which it
must avoid, in arriving at such a conclusion. Where it concludes, as
the Senior Magistrate did in this case, that a thing has in fact been
stolen, it must guard against any mental predisposition to conclude
that because the evidence does not show, to the standard of proof
required by the principles of criminal justice, that the person
accused actually stole the thing, then he is to be convicted of
receiving, in the absence of a satisfactory explanation from him of
question in every case, before a person can correctly be held guilty
of knowingly receiving stolen property, is whether he did in fact
know that it was stolen, the word "know" having at common
law a widened meaning for the purposes of this crime. By itself, the
fact that a person is in possession of property that has at some
point of time, even recently, been stolen does not make him
do not, with respect, find any of the Senior Magistrate's reasons for
rejecting the appellant's evidence at the trial very persuasive.
of those reasons was that in questioning by the Senior Magistrate
himself, the appellant said that it had occurred to him that the car,
(which by his account had been sold at a police auction in South
Africa) might have been stolen, whereas he had "insisted"
earlier that he did not think that the car could have been stolen.
But the record does not show that he "insisted" on that at
all. What it shows is that in answer to questioning by the court
itself, as to whether he thought that the vehicle was stolen, he said
that he did not know; and then in answer to the next question by the
court - as to whether, because it had been purchased at a police
auction, the possibility occupied to him that it might have been
stolen - he acknowledged that that possibility had. That shows
nothing adverse to the appellant, on any proper view.
Senior Magistrate, of his own motion, asked the appellant several
questions at the trial, all of which appear to me to have been
directed towards testing his explanation. It is within the discretion
of a presiding judge to question an accused person, but it is my own
view that in this case he went too far in doing so.
second reason given by the Senior Magistrate is also unconvincing. It
was, simply, that - again in response to questions from the bench -on
the one hand the appellant had denied that he was accustomed to
driving cars, whereas on the other he said that in frequent visits to
Swaziland, he often borrowed cars from friends to do so. It is by no
means apparent from the record that he was clearly contradicting
himself and I do not consider that the adverse inference drawn by the
court below has any weight at all.
last reason given by the Senior Magistrate was that the appellant had
"adapted" his evidence under cross-examination, having
earlier said that he had come to Swaziland to visit his aunt - but
then saying that he came to seek treatment for mental illness. Once
again, the appellant said these things in response to questioning by
the court itself, and he did so in explanation as to why he had
extended his visa from 4th February (i.e. some time after his
arrival) until 28th February. The significance of that had never been
put in real issue by the prosecution itself in presenting its case
against him. The Senior Magistrate had accepted, eventually that it
was reasonably possible that he did intend to return to South Africa
on 28th February. There is nothing necessarily inconsistent at all in
an account that a person, having come to this country to visit his
aunt, then stayed on for some other reason.
crucial question that the Senior Magistrate had to decide was
whether, on a consideration of the whole of the evidence, he was
satisfied so that he was sure that the applicant had received a
vehicle knowing it to have been stolen. To arrive at that conclusion,
he had to be satisfied on a consideration of the whole of the
evidence that the vehicle was indeed stolen but he also had to be
satisfied that the appellant knew it to have been stolen. I do not
consider that the Senior Magistrate's reasons for disbelieving the
appellant justify such a conclusion.
the appellant in the event limited himself to two specific grounds of
appeal against conviction, neither of which by itself is sufficient
reason to set it aside, this Court has wide powers of review and I am
of the view that having regard to all of the matters to which I have
referred, the conviction of the appellant cannot be
or satisfactorily sustained.
therefore allow the appeal against conviction. The conviction is set
aside. The appellant is to be released on this charge immediately.