IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE CRI. APPEAL No.45/97
In
the matter between:
GEORGE
KHOZA APPELLANT
And
THE
KING RESPONDENT
CORAM: DUNN
J. MAPHALALA A J.
FOR
THE APPELLANT: MR. SIMELANE.
FOR
THE RESPONDENT: MR. WACHIRA.
JUDGMENT
19TH
MARCH 1998
The
appellant to whom I shall continue to refer to as the accused was
charged before the senior magistrate in the following terms -
Count
1
The
accused is guilty of the offence of contravening section 3(1) Of the
Theft of Motor Vehicles Act No. 16/1991.
In
that upon or about the 15th December 1994 and at or near Weg 10
Groeneweide street Boksburg,in the Republic of South Africa, the said
accused did wrongfully and unlawfully steal a white Toyota Sprinter,
registration KKB 405 T, the property or in the possession of Maria
Elizabeth Strydom valued at E
10
000. And that upon or about the 29th March 1996, the said accused did
unlawfully and intentionally convey the said motor vehicle into Mliba
area in the district of Manzini, within the
2
Kingdom
of Swaziland and theft being a continuous offence, the said accused
did commit the crime of theft of the motor vehicle under the
jurisdiction of this court.
Alternatively
-
The
accused is guilty of contravening section 3(1) of the Theft of Motor
Vehicles Act No. 16/1991 (receiving a motor vehicle knowing it to
have been stolen )
In
that upon or about the 29th March 1996 and at or near Mliba area in
the district of Manzini, the said accused did wrongfully, unlawfully
and intentionally receive into his possession a motor vehicle to wit
a Toyota Sprinter, registered KKB 405 T, well knowing it to be stolen
or having reasons to suspect it to have been stolen, the same being
the property of or in the lawful possesssion Maria Elizabeth Strydom.
Count
2.
The
accused is guilty of the offence of contravening section 10 of the
Theft of Motor Vehicles Act No 16/1991.
In
that upon or about the 29th March 1996 and at or near Mliba area in
the district of Manzini, the said accused did wrongfully and
unlawfully have in control a motor vehicle to wit, a Toyota Sprinter
motor vehicle bearing registration marks JMB698 T, which reistration
marks were false the true and original marks being KKB 405 T.
The
accused pleaded not guilty to the charges.
At
the conclusion of the trial, the accused was convicted of common law
theft on count 1. This was in line with the decision of this court in
the case of MDUDUZI SIPHO DLAMINI v. THE KING CRI. APPEAL No. 26/95
(unreported)
to the effect that section 3(1) of the Theft of Motor Vehicles Act
was not of extra-territorial application. The accused was convicted
as charged on count 2. He was sentenced to three years imprisonment
on count 1 and to six months imprisonment on count 2. It was ordered
that the sentences should run concurrently with effect from the 8th
May 1996.
The
present appeal is against both the conviction and the sentence.
The
evidence led by the crown fully established the commission of the
offence as charged on count 1. The vehicle was found in the
possession of the accused at the beginning of April 1996, by the
Mliba police. The accused claimed ownership of the motor vehicle. The
question which the court a quo was to consider, was the accused's
explanation for possession of the stolen motor
3
vehicle.
The senior magistrate, in a fairly lengthy judgment, dealt with the
circumstances under which the vehicle was recovered. Reference was
made by the senior magistrate to certain documents which the accused
exhibited in the course of his evidence in support of his contention
that he purchased the
vehicle
from one Doctor Vilakati. Neither the identity nor the whereabouts of
Doctor Vilakati could be established by the accused. For reasons
which are set out in the record, the senior magistrate rejected the
accused's evidence of how he came into possession of the vehicle, as
false.
I
can find no fault with the senior magistrate's assessment of the
evidence and his reasons for rejecting the accused's evidence.
The
accused's defence rested entirely on the evidence he gave about
Doctor Vilakati, a person he did not mention to the police when he
was questioned about his ownership of the vehicle.
Neither
Doctor Vilakati nor the person who allegedly introduced the accused
to Doctor Vilakati were called by the accused as witnesses.
The
appeal against the conviction on count 1, is dismissed.
Turning
to count 2 the crown conceded for the reasons that follow, that the
conviction cannot be allowed to stand.
Section
10 of the Theft of Motor Vehicles Act reads as follows -
Any
person who, on any road, drives or is in control of a motor vehicle
which bears false or no registration marks commits an offence and is
liable on conviction to a fine not exceeding five thousand Emalangeni
or imprisonment not exceeding two years.
The
evidence at the trial did not establish that the vehicle was found on
a road.
There
was direct evidence that the vehicle was found parked at the
homestead of the witness Modison Magagula, in the Mliba area. It was
incumbent upon the crown to prove that the accused drove or was in
control of the motor vehicle, on a road.
The
conviction and sentence on count 2 are in the circumstances set
aside.
There
is no merit in the appeal against the sentence.
The
accused complains that his personal circumstances were not taken into
account when the custodial sentence, without the option of a fine,
was imposed. The senior magistrate indicated in his reasons for
judgment, the factors which he took into account, including the
personal circumstances of the accused. He made specific reference to
the gravity and prevalence of this type of offence in Swaziland. He
also referred to pronouncements of the High Court on the question of
sentence in such cases. The sentence imposed in the present case is
within the range of
4
sentences
imposed for this type of offence. The record does not reflect any
irregularity or misdirection on the part of the senior magistrate as
to warrant this court to interfere with the sentence.
The
appeal against sentence on count 1 is dismissed.
B.DUNN I
agree. S.B. MAPHALALA
JUDGE. ACTING
JUDGE.
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