Msibi and Others v King (NULL) [1994] SZHC 95 (06 December 1994);

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IN THE HIGH COURT OF SWAZILAND


Crim.Appeal No. 88/94


In the matter between:


  1. MGOGA MSIBI

  2. THEMBA NDZINISA

  3. JOSEPH MATSENJWA

  4. MLOYI TSABEDZE

  5. MSEBE NDZIMANDZE

  6. AMOS BULUNGA

  7. THEMBA NHLEKO


Vs


THE KING


CORAM: Hull, CJ.


FOR THE APPELLANTS Mr. D. Mngomezulu


FOR THE CROWN Mr. Ngarua


Judgment (ex tempore) (6/12/94)


Dealing first on the appeal against conviction on count 1, the count of assault with intent to cause grievous bodily harm, I will only say very shortly that there is clearly evidence on which the Magistrate could, as he did, have convicted each accused on this charge. The record does not show that the complainant or his wife tried to conceal anything, in other words as to the fact that he had a weapon. The critical question was, who were the aggressors, or who was the aggressor? The Magistrate believed the complainant and his wife and


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he disbelieved the accused. He was obviously entitled to come to that view. I have no sufficient basis for interfering with that, but I would make the following further observations. The defence case postulates that one man would attack nine men, who were themselves carrying knob sticks at least in several cases. That to me seems implausible. The nine men admittedly came to his house early in the morning. The other thing that strikes me about the matter is that nine men were sent to levy a fine. That to me also sounds implausible. However, the essential point is that the Magistrate who tried the case saw all the witnesses and it was clear from his judgment that he believed the complainant and the complainant's wife and he disbelieved the accused, namely the appellants here.


The appeal against conviction on count 1, in other words the count relating to the charge of assault with intent to cause grievous bodily harm, is accordingly dismissed.


In relation to the appeal against conviction, on count 2, the charge of robbery, the Crown does not challenge the appeal, and on a reading of the record and more particularly the judgment of the learned Acting Senior Magistrate, it is apparent that the learned Magistrate did not address his mind specifically to whether or not the appellants here believed that they were acting under some colour of right. Their own unchallenged evidence is that they were carrying out the orders of their chief, and I would readily accept the submission of defence counsel that, as rural dwellers, they believed that they had an obligation to carry out their chief's instructions. It is unnecessary for me to pursue the point taken by Mr. Mngomezulu,namely that they were two unrelated incidents. I do not consider that they were, and the Magistrate did not consider that they were, and I think he was correct in that respect, but the appellants acting under colour of right in respect of the taking of the goat, I agree with the Crown that this conviction cannot be sustained. Accordingly on the appeal against conviction on count 2, the robbery charge, the appeals are allowed in each case and the convictions for robbery are all quashed.


That leaves the question of the appeal against sentence on count 1, the assault causing grievous bodily harm.


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My first observation as far as that is concerned is that as far as the civil courts of this country are concerned, they will adopt an extremely severe approach towards anybody who takes the law into his own hands. If others have a different view, that is their business, but that is the attitude which the civil courts of this country will always take.


Having studied the evidence relating to the injuries sustained by the complainant, I do not think that I would be justified in concluding that he was so badly beaten that he was paralysed. The report of the doctor who actually examined him - possibly, strictly, a hearsay report - does not sustain this anyway. It refers to an element of weakness. The evidence of his neighbour, called for the defence, is that he can walk about and that he can indeed chop wood, but he did say that he has to get about with a stick.


So having noted that limitation on the extent of the injuries, I want to go on to say that it was nevertheless obviously a very brutal assault. The complainant had to stay in hospital for a significant period of time. It was also a case of at least seven men attacking one man in his own homestead, using weapons.


Then, looking at it from the point of view of the appellants' personal circumstances, I consider that there is force in the submissions made by Mr. Mngomezulu. I feel sure that the Acting Senior Magistrate would have been concerned to indicate in no uncertain manner that the civil courts will not tolerate lawlessness, and in particular mob violence, which is what this was. He did, however, refer only to the fact that most of the appellants - all but one of the appellants are first offenders, and I agree with Mr. Mngomezulu that that therefore raises an impression, at least, that he overlooked other factors, or at least he did not deal with them explicitly, and I think that there are other factors. I do not really think I can do better than to refer to Mr. Mngomezulu's summary in that regard. The major factor, I think in particular, which I do accept, is that these appellants were (however misguidedly) carrying out what they understood to be orders from their chief, and I agree with him that one has to acknowledge the cultural realities of that. It has not been disputed either that they


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did, or at least some of them did, assist in getting him to hospital. They must have assisted because somebody came from the chief's kraal to make sure that he was taken to hospital. It has not been challenged that the costs involved have been borne either by the chief, or by the appellants. The Magistrate did take into account the fact that all but one are first offenders.


The one who is not a first offender has relevant previous convictions - that is Joseph Matsenjwa - including as many as five previous convictions for assault, so that everybody should know this, of which two were for assault involving grievous bodily harm or an intention to commit grievous bodily harm. I do not know what the realities of this were, as far as being able to find the money to pay a fine is concerned, but on all of his convictions (which add up to eight over the years) he has always been given either the first option of a fine or a suspended sentence, which raises the obvious question, and which has now come to this, i.e. whether the courts have not treated him too leniently. There is clearly an obvious basis on this present charge for treating him more severely than the other appellants, but bearing in mind that it was very much a group activity (and not after some hesitation) 1 have come to the view that it would not be right to do that. On count 1, the conviction for assault with intention to do grievous bodily harm, the appeals are allowed to the following extent: In case of each appellant, the term of imprisonment is still to be two years. That is an appropriate term in my view. However the portion to be suspended is to be eighteen months, in each case on the condition that during the period of suspension, the appellant does not commit any offence involving violence. Also the time spent in custody awaiting trial on these charges is to be taken into account in calculating the length of the sentences.


In all other respects the appeals against sentence on count 1 are dismissed.


And I want to add in the case of the appellant Joseph Matsenjwa - that the courts, to my way of thinking, have given you a pretty lenient run for your money over the years. If you make the mistake of committing a further act of violence you are going to be looking at completing


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this two year jail sentence without any doubt whatsoever, in addition to whatever punishment you may receive for any further offence. So, I hope that you take that on board.


DAVID HULL


CHIEF JUSTICE