THE HIGH COURT OF SWAZILAND
App. No. 80/94
the matter between:
ROMILDO LANGA Appellant
THE CROWN Mr. Ngarua
THE APPELLANT In person
appellant was with two women charged with the unlawful possession of
ninety-seven "Mandrax" tablets containing methaqualone.
Pending the trial one of the women - the second accused - absconded.
The other, by her own testimony, had solicited three men in the Hub
mall in Manzini (who happened to be police officers in plain clothes)
to buy the tablets. At the end of the case she was acquitted, on the
basis that she herself could not be said to have been in possession
of the drugs.
its own case, the Crown should in my view have charged the three
accused with dealing unlawfully in the drug. It was plainly a ease of
trafficking, on the facts alleged by the prosecution. If Swaziland
suffers the misfortune of a serious influx of so-called hard drugs
as cocaine in its different forms, and heroin, it will be very
important to recognise and to prosecute with vigour clear-cut cases
of trafficking. It should also be borne in mind that dealers will not
hesitate to enlist persons whose youthfulness or sex are perceived as
inducing a sense of leniency in the approach of law enforcement
agencies and on the part of the courts. Sentimentality is misplaced
in what are sometimes called, aptly, if rather dramatically, "the
the live issue on the present appeal is whether the appellant was
rightly convicted of possession.
case against the appellant, at its strongest, can be put as follows.
The third accused approached the three police officers in the mall.
She told them that she had something to sell, indicating that it was
illegal. Then she took them to the Skills Centre in the mall and
introduced them to the appellant. He showed them ninety-seven
tablets, which he said had come with his sister-in-law from Maputo.
(The third police officer then left, to get assistance from the
police station.) The appellant said that the price was eight rand per
tablet. At the time when this conversation took place his
sister-in-law - the second accused, who later absconded - was present
in the room.
appellant does not deny any of this, except on one crucial point. In
an unsworn statement from the dock, he said that it was his
sister-in-law who was selling the tablets, that he thought they were
for medicinal purposes (in other words, by clear implication, that he
did not know they were proscribed drugs, so far as the transaction
was concerned) and that all he did was to act as a translator on
behalf of his sister-in-law, who could not speak English or Siswati.
that, in cross-examining the chemist who gave evidence for the Crown
as to the content of the tablets, the appellant did put in issue the
colour and size of the tablets involved in the transaction. In so
doing, he appeared to be advancing, as a line of defence, the
contention that the chemist had been given different tablets.
was one patent discrepancy in the evidence of the Crown's witnesses.
The first of the police officers who were approached by the third
accused in the mall said in evidence that, at the Skills Centre, the
appellant had taken some tablets from his pocket and had got the
remainder from some other place in the room. He could not say exactly
where the appellant had taken them from. He did not mention that the
tablets were at any time put into a plastic bag.
his evidence in chief, the second of the officers testified that it
was the appellant who had given them the tablets. He said that they
came from his pocket. In cross-examination, it was put to him by the
appellant (who was unrepresented) that they were in a bag "of
his sister in law". His answer to that was
is not correct. They were taken by you from your pocket."
presiding magistrate also questioned the second police officer about
this. He elicited an answer that they were in a single plastic bag.
When the magistrate informed him that his colleague had said that
some were taken from some other place, the officer under
cross-examination replied that he took it that his colleague was
saying what he saw, "because we were not both doing the same
thing at the same time." He went on however, in response to a
further inquiry as to whether someone could have taken tablets out of
a bag while he was not watching, to say that that could not have
happened because he did not trust anyone in the room and was watching
carefully whoever was moving.
police officer said that on the day in question, at his headquarters,
the first police officer handed him ninety-seven tablets "in a
was one other difference between the evidence of the first and second
officers. The second said that when they were approached in the mall
by the third accused, she had said that she was selling something but
that " she could not sell it in public because it was illegal".
The first officer, who had already testified at the trial, had not
in cross-examining the first officer, the third accused had asked and
received the following questions and answers:
When I left with the Spar to the Skills Centre, from whom exactly,
did you get the tablets.
The tablets were produced by James Langa, the accused No. 1.
Why then did you involve me in this business of the tablets, because
I had been sent by the owner of the tablets?
Because you were his agent.
I was learning at school - at the Skills Centre, and I was acting on
instructions of my boss.
1 do not know."
had also suggested to the officer that she left after pointing out
the person to him, and that she had not been in the same room when
other words, the third accused was denying guilty involvement. It
must be added, however, that it was never suggested to the second
officer, who was the next witness, that he embellished his evidence
in this respect to close a gap.
his judgment, the learned Senior Magistrate misdirected himself in
one respect. He began by saying that he accepted the evidence of the
second police officer "as confirmed by (the first police
officer) and the evidence of 'the accused No. 2', to the effect that
accused No. 1 had ninety-seven tablets in his pocket". But, as I
have narrated, that was not the evidence of the first police officer.
What he had said, positively, was that the ninety-seven tablets had
been brought together from two separate sources. He had not mentioned
a container. It seems to me most unlikely that a dealer would have
had ninety-seven tablets in his pocket otherwise than in a container,
or of course that
would have sold that amount of tablets except in a container of some
sort. On the other hand, I think that it is just as unlikely that if
the appellant had gathered together the tablets in the way-described
by the first officer, that policeman would not have recalled - and so
mentioned - that at some point the appellant had not put them into a
single container to hand over.
fact, too, the second accused never gave evidence. By the time her
opportunity to do so arrived, she had absconded. This may be a
typographical error. However the third accused did not confirm any
police officer's evidence as to where the tablets were produced from.
then does that leave this affair?
the most favourable version of events to the appellant, a woman
accosted three policemen in mufti in the mall. Certainly she was not
a shopkeeper, selling her wares. She took them to the Skills Centre.
There, admittedly and voluntarily, the appellant acted as an
interpreter for his sister-in-law as (on his account) she offered
ninety-seven tablets to them at eight "rand" each. At least
two persons in my view should have been charged, undoubtedly, with
trafficking in drugs. One, undoubtedly, was the third accused. The
fact that the second accused, the sister-in-law, absconded pending
the trial suggests strongly that she was involved as well. The
question here is whether the appellant was also a party to a criminal
the modem world, his explanation that he merely acted as an
interpreter while one of his relatives offered for sale ninety-seven
tablets to two men who came into a place that was not a shop is of
course, in the circumstances, difficult to believe.
the appellant does not have previous convictions. It was not
suggested that he was not at his ordinary place of employment. The
presiding magistrate did not say in his judgment that the appellant
was obviously implausible. Every criminal charge falls to be proved
beyond reasonable doubt, whether it be murder or a mere breach of the
peace. I do think that it is at least reasonably possible that a
through lack of prudence, or perhaps even of resolution, might play a
by-stander' s role in the commission of a criminal offence to which,
in truth, he is not a party. In fact, I would go a step further. Even
in the modem world, I do think that a person is entitled to assume,
if he does not believe or actively suspect otherwise, that his
companions are not engaged in a criminal activity - and that he is
not to be held criminally liable for a lack of vigilance.
the present case, there was in my view a significant discrepancy
between the accounts of the two police witnesses whom the third
accused approached. One must have been wrong. In other words, one
must have described incorrectly the circumstances in which they were
eventually offered the tablets. The Senior Magistrate of his own
motion did recall the officer to whom the first two officers handed
over the tablets, and elicited from him that the quantity could have
fitted into a person's trouser pocket. However, I can see no safe
basis for concluding that it was the first rather than the second of
the two officers who was wrong. There was a material discrepancy
giving rise to a question of the reliability of the officers'
evidence. Moreover, although I do not say so critically, in any
personal sense, the trial magistrate did not summarise accurately the
evidence against the appellant.
third accused was a person who clearly had an ulterior motive to
serve by giving false evidence - namely to exculpate herself - but
her own evidence was that the appellant had told her that it was his
sister-in-law who wanted her to go and look for tablets. The second
police officer confirmed that the second accused could not speak
appellant is entitled to the benefit of any reasonable doubt. In my
view, on a correct summary of the evidence, and taking into account
the discrepancy between the two officers, it cannot safely be said
that the case against the appellant was proved beyond reasonable
appeal is accordingly allowed, and the conviction set aside.