THE HIGH COURT OF SWAZILAND
the matter between:
DLAMINI 1st Appellant
T. NKOSI 2nd Appellant
M. KUNENE 3rd Appellant
: SAPIRE ACJ, DUNN J.
THE CROWN : MR WACHIRA
APPELLANT : ALL IN PERSON
three appellants appeared together with a fourth person before the
Senior Magistrate, on a charge sheet of four counts. At the
commencement of the trial the crown withdrew three of those charges
and proceeded against the four persons on counts one and three only.
one was that of the armed robbery of one Janette Mayhew along
mountain drive on the 6th of July 1996. There was in fact a break
into her house before the robbery. The total value of the goods taken
in the robbery was some twenty- eight and a half thousand Emalangeni
(28,500.00). The robbery was carried out in the evening in the
presence of the complainant's minor children. On count 3 the charge
that of the armed robbery of Nomvula Shabangu on the 9th July 1996 at
Pine Valley. The total value of the goods taken in that robbery was
some thirteen almost fourteen thousand Emalangeni.
robbery also took place at night at the homestead of the complainant.
appellants pleaded not guilty to the two charges. They were, however,
convicted and sentenced as follows:
count 1 accused nos. 2 and 3 were convicted as charged and sentenced
to 7 years imprisonment.
count 3 accused no 1 was convicted as charged and sentenced to 7
fourth person was acquitted and discharged on both counts.
present appeals by the appellants relate to both conviction and
sentence on the respective counts on which they were convicted. The
main ground of appeal by the appellants relates to the evidence of
their identification as the persons who perpetrated the offences. We
have read the record of the proceedings before the Senior Magistrate
and are, ourselves, satisfied that the evidence of the identification
of the three appellants as the perpetrators of the offences fell far
short of what is required to be done by the police in the conduct of
an identification parade. Mr Wachira who appears for the crown in the
present appeal quite fairly and correctly conceded that the
procedures followed by the police in the present case were improper
are numerous decisions on the question of identification parades, of
the High Court of Swaziland and corresponding courts in the Republic
of South Africa. Suggestions have been made by the High Court to the.
Commissioner of Police for the establishment, within the Royal
Swaziland Police, of a specialised unit to deal with identification
parades. It is not clear why steps have not been taken thus far, to
place such a unit in place. This court has had occasion in the past
to comment and make suggestions on various aspects of police
investigations at the scenes of crime. Those suggestions bore fruit,
in the creation of a special scenes of crime unit within the Royal
Swaziland Police Force. It is fair to say that the standard of
evidence of investigations at the scenes of the crime has improved
remarkably since the establishment of that unit. There is no reason
to believe that the same would not be the case if such a special unit
for identification parades were established. Mr Wachira has
undertaken, to convey this sentiment of the court to the Commissioner
point raised. by the appellants, regarding the identification parade
is a valid one. That is, however, not the end of the matter. The
crown had other evidence which it presented and upon which the
learned Senior Magistrate relied in convicting the appellants. The
Senior Magistrate was alive to the irregularities in the
identification parade. Each of the appellants was shown beyond
reasonable doubt to have been in possession of items that were taken
in the armed robberies.
was the appellants that voluntarily led the investigating officers to
various persons who had been given possession of these items by the
appellants. In the case of the second appellant, he was in fact
brought to the police in possession of such items.
appellants, each in giving evidence in their defence, gave
explanations as to their possession of the stolen items which the
Senior Magistrate quite correctly, in our view, rejected as false.
The position then was that the appellants were each found in
possession of items which on the evidence, had recently been stolen.
They failed to give reasonable explanations as to their possession
and the court, quite correctly, found that they were the perpetrators
of the offences. We can find no fault with the findings of facts by
the Senior Magistrate and in the circumstances dismiss the appeals
against conviction by accused no 1 on count 3 and by accused nos. 2
and 3 on count 1.
to the question of sentence, both offences were carried out at night
by the appellants who were armed. The complainants were both
defenceless women. The complainant on count 1 was abused physically
and verbally in the presence of her minor children. On count 2 the
complainant Nornvula and her employer were viciously assaulted, bound
and detained in a toilet in the house.
two offences it must be noted were carried out in the homes of the
is where they are expected to feel a measure of security. A man's
house is his castle. The idea of people, like the appellants,
about at night committing this type of offence is something which the
courts will not countenance. There are far too many of these offences
being committed and the public has screamed out enough and is looking
to the courts and the law enforcement agencies for protection. If the
courts do not listen to these cries, these genuine cries of the
public, the courts will fall out of touch with the public which will
take the law into its own hands.
homes are now better secured than some prison cells. The next step,
if this burglaries continue, will be people arming themselves for
protection. The approach of the courts must be to impose sentences
that will not only be a deterrent to persons like the appellants but
to other persons who might take the view that they will commit such
serious offences and get away which light sentence.
community should be assured that when people like the appellants are
arrested they will be dealt with swiftly and effectively by the
courts. The High Court has itself heard cases of this nature and
imposed sentences of up to 10 years. There is clearly nothing in the
sentence of 7 years which can be said to induce a sense of shock or
that the sentence is so glaringly inappropriate as to call for
are no grounds on which this court sitting as a court of appeal,
considers it has a right to interfere with the sentence of 7 years
for this type of offence. The only issue regarding the sentence is
that it appears that the Senior Magistrate did not carry out any
enquiry as to when the accused were arrested with a view to
appeals against sentence are dismissed. The sentence of seven years
on each appellant is confirmed with the alteration that the sentence
on accused No. 1 is backdated to the 11th July, 1996.
sentence on accused No. 2 is backdated to the 15th July 1996, and
that on accused No. 3 is backdated to 22nd July 1996. It is directed
that this backdating be reflected on the appellants' committal
warrants to the prison.
ACTING CHIEF JUSTICE